The Equality Act 2010 came into force on 1 October and has consolidated much of the pre-existing equality and discrimination legislation in England and Wales. Separate parts of the Act apply to the duties of employers, providers of services and the Act states that Further Education colleges must not discriminate against a student or prospective student because of age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are described as "protected characteristics".
Colleges offer a wide variety of courses, activities and qualifications, all of which are affected by the need to avoid discrimination. Flexibility, and avoiding assumptions about stereotypes are key factors for colleges in planning and delivering courses to meet the needs of the wide variety of students who wish to take advantage of the education and training provided.
Key equality issues for colleges
Admissions: Colleges must not discriminate in the way that they offer places to anyone with a protected characteristic. Admissions are considered in more detail below.
Harassment and victimisation: Colleges must ensure that staff or other students are prevented from subjecting students with protected characteristics to behaviour which violates the student's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that student. Any student who makes a complaint about discrimination or harassment must not be victimised as a result.
Curriculum: Colleges can expose students to thoughts and ideas of all kinds without fear that this might be seen as discrimination. For example, a course might explore attitudes to different racial groups. However, the delivery of the curriculum is covered by the Act. For example, if a tutor comments on a certain racial group in a derogatory and offensive manner this may be discriminatory.
Exclusions: Students with a protected characteristic must not be excluded because of that characteristic. Indirect discrimination may occur if disciplinary or exclusion policies result in a greater proportion of students with protected characteristics being disciplined or excluded.
In addition, there is a duty to make reasonable adjustments to the exclusion and disciplinary procedures if needed to prevent disadvantage to disabled students. This may include:- responding differently to behaviour which is a direct consequence of the disability - e.g. swearing by a student with Tourette's syndrome considering more appropriate alternatives to a specified sanction.
Duties to disabled students are far reaching. The Equality Act has introduced a new concept; discrimination arising from a disability. This occurs if a college treats a disabled student unfavourably because of something connected with their disability and cannot justify this treatment.
An example might occur if a college refused to allow a student with diabetes to go on a field trip because of concerns that he might become ill. Can this be justified? Only if the refusal is "a proportionate means of achieving a legitimate aim." The college's legitimate aims could include concerns for the student's health and fears of disruption for other students. However, is this proportionate? The college should take medical advice and explore all options before making a decision which is potentially discriminatory.
Colleges must take reasonable steps to adjust existing practices, criteria or provisions where disabled students may be put at a substantial disadvantage. This is known as the reasonable adjustments duty and applies also to removing or altering a physical feature which puts a disabled person at a substantial disadvantage. Provision of auxiliary aids or services (for example, the installation of a hearing loop for deaf students) may also be a reasonable adjustment depending on the circumstances. Failure to make a reasonable adjustment where the duty arises cannot be justified. The only issue is whether the adjustment is "reasonable" which is an objective question to be determined by the court if necessary.
Colleges must not
use admissions criteria that exclude (directly or indirectly) categories of people with a protected characteristic
place discriminatory terms or conditions on a person's admission
refuse a place for discriminatory reasons.
Indirect discrimination may occur if admission criteria exclude a greater proportion of students from particular categories. In the past colleges have been in danger of indirectly discriminating against prospective students by:
Setting fixed proportions of male and female students in a co-educational college
Using images of young people only in marketing material for the college which has the effect of discouraging older applicants.
Colleges should also offer alternative formats for their prospectus or application form to enable, for example, people with learning difficulties or those whose first language is not English to access information about their courses.
Where there is a "genuine occupational requirement" for a certain type of job, colleges can refuse admission to courses which train people only for such jobs in circumstances which would normally mean that the college is discriminating.
An institution which has been designated as having a religious ethos can have an admissions policy which prefers students that share its religion or belief over others who do not, but only in relation to courses which do not constitute vocational training.
Single sex colleges can lawfully admit students of only one sex. Colleges should note that this exception only applies to admission - once a student has been admitted there must be no discrimination in terms of access to benefits, facilities or services, or in relation to exclusion.
The Act encourages education providers to take action to address the particular disadvantage or different needs of a particular student group provided certain conditions are met. Such action could include targeted provision or resources to benefit a particular group. For example a college could lawfully advertise courses as open to disabled people only. It is not unlawful to treat people with a protected characteristic more favourably those without such characteristics provided this is a proportionate means of overcoming the disadvantage suffered because of the characteristic.
This has been a brief summary of a complex area of law. Failure to comply with the Act can have serious consequences. Claims of discrimination are made to the county court and can be costly in terms of reputation and resources. Colleges are therefore advised to follow the comprehensive guidance "What equality law means for you as an education provider: further and higher education" published by the Equality and Human Rights Commission and to take specialist legal advice if faced with a particular problem.
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