Creating a fairer Britain
Regular reviews of your practices, policies and procedures will help to ensure that there is no discrimination against pupils with a protected characteristic.
Effective staff training is a useful tool in ensuring that all your staff are fully aware of the requirements of the Act and the implications of this for your education provision and delivery. This should help you to avoid unlawful discrimination.
Treating a pupil less favourably because of a protected characteristic, such as not allowing them to participate in a particular activity which other pupils are allowed to participate in is likely to be direct discrimination which is always unlawful.
A 16-year-old pupil is diagnosed with gender dysphoria. The pupil has adopted a male name by Deed Poll. The school allows a change of name in its records but refuses to use any male pronouns with regard to this pupil. This greatly distresses the pupil. Such treatment is likely to amount to direct discrimination because of gender reassignment. (Example provided by GIRES.)
Indirect discrimination can occur without you intending it to but this does not prevent it from being unlawful. Indirect discrimination can occur when your policies, criteria and practices inadvertently result in pupils with a particular characteristic being treated worse than other pupils.
A school which has a number of Muslim pupils does not provide Halal food in its canteen which results in the Muslim pupils being unable to have school lunches. This is likely to be unlawful indirect religion or belief discrimination as the school is unlikely to be able to justify this action.
A school with a significant proportion of Jewish pupils arranges extra-curricular drama sessions on a Saturday morning. This is likely to result in indirect religion or belief discrimination unless the school can justify holding the sessions at a time when Jewish pupils may not be able to attend.
Indirect discrimination can only be justified if the policy, criterion or practice is a proportionate means of achieving a legitimate aim.
The same school arranges school sports matches for Saturday morning as this is when the local school league matches are played, this is likely to be a proportionate means of achieving a legitimate aim and therefore lawful.
Discrimination arising from a pupil’s disability can also occur inadvertently if you treat a disabled pupil badly because of something arising in consequence of their disability and cannot justify this as a proportionate means of achieving a legitimate aim.
A school won’t allow a pupil who is HIV positive to take part in physical education lessons as they fear that if he is injured he will be a risk to other pupils. This is unlawful discrimination because it is based on misconceptions and assumptions and not on any real risk. (Example based on information provided by NAT.)
You need to have arrangements in place to ensure you deal with the reasonable adjustment needs of your disabled pupils.
The equality duties will help to ensure that all your school activities are non-discriminatory. For example, you should already be carrying out equality impact assessments under race, disability and gender equality duties and these will provide a useful platform on which to meet your legal responsibilities under the Act towards people with a range of protected characteristics.
The way in which the curriculum is delivered is covered by the Act so you must ensure issues are taught in a way that does not subject pupils to discrimination. In addition, what is taught in the curriculum is crucial to tackling key inequalities for pupils including gender stereotyping, preventing bullying and raising attainment for certain groups.
During a science lesson a teacher doesn’t allow Muslim pupils to carry out practical experiments with chemicals and says this is because he doesn’t want them to get ideas for making bombs. This would be unlawful discrimination on grounds of religion or belief.
A school reviews the subjects it covers in PSHE and ensures they include equality and diversity including gender equality and non-violent, respectful relationships between boys and girls, women and men. This is good practice.
(Example adapted from one provided by WNC.)
Teaching staff should be encouraged to think about the way they deliver their teaching to ensure that they do not inadvertently discriminate against pupils.
Requiring pregnant schoolgirls to attend parenting classes at the local college at the same time as science GCSE classes would be unlawful direct discrimination on the grounds of pregnancy and maternity.
Offering the classes at a different time so that prospective parents, both girls and boys, could attend science and parenting classes would be good practice and help the school to avoid unlawful discrimination.
Indirect discrimination may occur when pupils with particular protected characteristics are discouraged from taking part in academic opportunities or from studying certain subjects or certain opportunities are promoted to some pupils but not others.
To assist pupils in making GCSE subject choices a school arranges careers talks. A talk on careers in engineering is presented to boys and a talk on careers in nursing is given to girls. Setting up gender segregated careers talks which has the effect of preventing pupils of either sex to attend either talk is likely to be unlawful indirect sex discrimination. This is an example of gender stereotyping.
Making assumptions about a person’s ability to excel in a subject due to a protected characteristic could lead to unlawful discrimination.
School trips, including field trips and residential trips are often an important part of school life for pupils. You should seek to ensure that any trips that you arrange do not discriminate against any of your pupils. However, in some limited cases it may be impossible to make a school trip accessible for all pupils and the learning needs of other pupils should be part of the decision making process. Cancelling the trip because a disabled pupil can’t attend where it puts other pupils at a disadvantage may not be the best or only decision.
A school plans a trip to a natural history museum. A pupil with Down’s syndrome is excluded from the trip as the school believes she will not be able to participate in the activities provided by the museum for school groups. This is likely to be unlawful direct disability discrimination.
Forward planning will assist you in arranging trips which all pupils are able to participate in. Offering a range of different trips and activities may also help to ensure no pupils are excluded from taking part.
Arranging residential trips that coincide with religious festivals or holidays might prevent pupils from certain religions being able to attend and result in indirect discrimination.
The risk assessments that you carry out in relation to school trips should include a consideration of the reasonable adjustment needs of disabled pupils and it is good practice to seek ways of including rather than excluding such pupils on trips.
As part of their risk assessment for a school trip to an outdoor activity centre, school staff visit the centre and speak with staff to decide what reasonable adjustments are needed for disabled pupils to fully participate on the trip. Some pupils have mobility issues so hoists are provided for these pupils for rock-climbing activities. Support staff attend the trip to assist pupils with higher level needs and all staff receive medical training. This is an example of making reasonable adjustments for disabled pupils and demonstrates a good practice approach to inclusion.
As a school you have legal duties to your pupils in relation to bullying and you must ensure that you treat all bullying on the grounds of a protected characteristic with the same emphasis as any other form of bullying.
A sixth form pupil is bullied for being bisexual and although he reports the bullying to a teacher no action is taken as the teacher believes that it is just a bit of banter and he deserves ‘some teasing’ if he is going to say he is bisexual. This is likely to be direct sexual orientation discrimination.
It is important that you ensure that your school uniform policies do not discriminate against pupils with a protected characteristic. You should be reviewing your uniform policies and dress codes both to ensure they do not have the effect of unlawfully discriminating against pupils with a protected characteristic and to comply with your equality duties. You should consider making exceptions to your standard policies for certain pupils but also ensure that you are not setting different rules for different categories of pupils that might be discriminatory – for example requiring girls to wear clothing that is much more expensive than that for boys.
Examples of policies that might be discriminatory are:
Pupils should be given the same opportunities for work experience and placements and assumptions shouldn’t be made about what would suit pupils with particular protected characteristics; for example, assuming that only boys would be interested in placements involving bricklaying or car maintenance or that only girls would be interested in hairdressing.
Although you are unlikely to be held to be responsible for any discrimination which occurs while a pupil is on work experience, putting in place effective communication with work experience providers and supporting pupils while they are on placement will help to reduce the chances of discrimination during work experience.
As well as public exams such as SATs or GCSEs, which are set by external bodies, you will be assessing pupils regularly using a variety of methods. Reviewing your assessment methods will help you to ensure that you do not discriminate when assessing pupils. Assuming a uniformity in pupils’ cultural, linguistic, religious or lifestyle experiences could result in you indirectly discriminating against pupils from particular racial groups.
You may need to make reasonable adjustments during assessment for disabled pupils such as extra time or rest breaks, or to the assessment method such as allowing a disabled pupil to submit their work in an accessible format.
Reviewing behaviour and discipline policies regularly will help you to ensure that they do not inadvertently discriminate. Thinking about the reasons behind a pupil’s behaviour may help you to identify instances of bullying or disability-related behaviour. See the section dealing with Exclusion from school.