This is Section 18 of the Guide to the Law, as published May 2012.
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See C2G post on compliance with the PSED and setting objectives
This section outlines how equality legislation applies to schools, both in their role as employers and in the way that they provide education to the pupils in their care. The Equality Act 2010 prohibits discrimination based on sex, gender reassignment, race, disability, religion or belief, sexual orientation, pregnancy and maternity and age by schools in their role as employers, and also requires them not to discriminate in the provision of education on all these grounds except age. This section explains some differences in the way that different types of discrimination are dealt with, and provides links to further guidance.
This section is a guide to the law and not a comprehensive guide to good practice for governors. Governing bodies should be ensuring that schools comply with all aspects of discrimination law, but the best way to do this is to ensure that principles of fairness and equality are applied in everything that the school does. Links to specific guidance on aspects of good practice are included where appropriate, and sources of more detailed guidance on the law are also flagged up.
1. The governing body of a school must not discriminate against:
- job applicants
- existing members of staff
- a child seeking admission to the school
- existing pupils.
2. It must not discriminate either directly or indirectly on the grounds of:
- sexual orientation
- religion or belief
- pregnancy and maternity
- gender reassignment
- age (in relation to employment).
3. Definitions of different types of discrimination are covered in the DfE advice to schools on the Equality Act: http://www.education.gov.uk/schools/pupilsupport/inclusionandlearnersupport/inclusion/equalityanddiversity/a0064570/the-equality-act-2010
DISCRIMINATION AGAINST JOB APPLICANTS OR EXISTING MEMBERS OF STAFF
4. The governing body must not discriminate against an applicant for a post, or against an existing member of staff, on grounds of sex, race, sexual orientation, religion or belief, being married, being in a civil partnership, disability, gender reassignment or age. However, unlike other discrimination strands, direct age discrimination will not be unlawful if it can be shown to be objectively justified. In relation to disability but no other strand, there is an obligation to make reasonable adjustments in order to remove the substantial disadvantage created by the disability.
5. Governors need to ensure that there is no unlawful discrimination in relation to matters such as:
- recruitment procedures and selection standards
- conditions of employment
- opportunities for promotion
- training or other benefits
- discipline and grievance procedures
Genuine occupational requirements
6. There are specific legal provisions which recognise that there may be some narrow circumstances where employers will be allowed to treat staff, or applicants, differently because of a particular protected characteristic. These are based on that particular characteristic (such as being of a specific sex or age) being a genuine occupational requirement (GOR) for a particular job. The burden of establishing that a GOR exists rests with the employer. In the main it will only apply in respect of treatment linked to recruitment and refusing someone a post or training, and, in some circumstances, to dismissal from a post.
7. Schools should bear in mind that a GOR must be what it says: genuine and a requirement. A preference, however strongly held, for someone of a particular sex, sexual orientation, race or age to take up a job is not of itself a genuine requirement for someone of that particular sex, sexual orientation, race or age to fill the post. The special exceptions to the Equality Act which exist with regard to faith schools are set out in section 11 of this guide.
DISCRIMINATION AGAINST A CHILD SEEKING ADMISSION OR AN EXISTING PUPIL
8. The Equality Act makes it unlawful for the responsible body of a school to discriminate against, harass or victimise a pupil or potential pupil in relation to admissions, in the way it provides education for pupils, in the way it provides pupils access to any benefit, facility or service, or by excluding a pupil or subjecting them to any other detriment.
9. The “responsible body” is the governing body or the local authority for maintained schools in England and Wales, the education authority in the case of maintained schools in Scotland, and the proprietor in the case of independent schools, Academies or non-maintained special schools. In practice, this means the responsible body is liable for the actions of any persons acting on their behalf (including employees of the school) unless it can show that it has taken all reasonable steps to stop the individual from doing the discriminatory action or from doing anything of that kind.
10. The issues around what constitutes discrimination against pupils or potential pupils is covered in more detail in the DfE advice to schools on the Equality Act: http://www.education.gov.uk/schools/pupilsupport/inclusionandlearnersupport/inclusion/equalityanddiversity/a0064570/the-equality-act-2010
PUBLIC SECTOR EQUALITY DUTY AND SPECIFIC DUTIES
11. The Equality Act 2010 introduced a single Public Sector Equality Duty (PSED) on public bodies including maintained schools and Academies which extends to all protected characteristics - race, disability, sex, age, religion or belief, sexual orientation, pregnancy and maternity and gender reassignment. The Act has also introduced specific duties, which are designed to help public authorities to meet their obligations under the PSED.
12. This PSED came into effect in April 2011. It has three main elements. In carrying out their functions, public bodies are required to have due regard to the need to: eliminate discrimination and other conduct that is prohibited by the Act, advance equality of opportunity between people who share a protected characteristic and people who do not share it and foster good relations across all characteristics between people who share a protected characteristic and people who do not share it. The Specific Duties require schools to publish information demonstrating how they are meeting the aims of the general duty and to prepare and publish measurable equality objectives.
13. The Public Sector Equality Duty and the Specific Duties are covered in more detail in the DfE advice to schools on the Equality Act: http://www.education.gov.uk/schools/pupilsupport/inclusionandlearnersupport/inclusion/equalityanddiversity/a0064570/the-equality-act-2010
14. The Equality Act 2010 makes age discrimination by employers unlawful. Age discrimination differs slightly from other grounds in that both direct and indirect age discrimination are not unlawful if the treatment is “objectively justified” – that is, shown to be a proportionate means of achieving a legitimate aim.
15. The Equality Act allows an employer, when recruiting for a post, to treat job applications differently on grounds of age if an age-related characteristic is a GOR for that post. An employer can also rely on this exception in matters of promotion, transfer and training and when dismissing a person from a post where a GOR applies. However, schools should be very cautious in assuming that they can demonstrate that age is a GOR in relation to any post. ACAS provides guidance on the Age discrimination section of its website. (N.B. Age discrimination does not apply to the treatment of pupils in schools.)
16. In relation to complaints in the employment context, the LA or the governing body (whichever is treated as the employer for the purposes of the Act) may be legally responsible for discriminatory acts against employees or applicants for jobs, including acts carried out by the head teacher or other members of staff. Employment-related cases are dealt with by Employment Tribunals.
17. Discrimination complaints involving issues such as the admission of, or equal opportunities for, pupils will generally be taken up first with the head teacher. They may then be referred to the governing body and/or the LA. If the school or LA cannot sort out the problem and a discrimination case is brought, it will be dealt with by the County Courts. (Different procedures apply in relation to pupils and disability – see paragraph 18, below.)
18. Claims of disability discrimination are heard by:
- the Special Educational Needs and Disability Tribunal in relation to most educational claims;
- independent appeal panels in relation to admissions;
- an Employment Tribunal in relation to employment matters;
- the County Court in relation to the provision of goods, facilities and services.
19. The Equality and Human Rights Commission (EHRC) has powers to enforce the Public Sector Equality Duty by issuing a compliance notice to order the school to meet the duty within a certain timescale.
20. Much of the Equality Act 2010, as regards equal opportunity in the employment and vocational training field, reflects European Union (EU) Law. In addition to UK legislation, in certain circumstances, employees in the public sector may rely directly on EU law. Normally, however, EU rights such as a right to equal pay, equal treatment and non-discrimination on certain grounds are enforced in the UK through national legislation which has been written to reflect EU law.
Who is the employer?
21. Where the school is a community school or a community special school, the LA is the employer of all staff.
22. However, even if the LA is technically the employer of the school staff, the governing body of a school with a delegated budget has powers over the appointment, suspension, discipline and dismissal of staff. Accordingly, where complaints are made about any discrimination concerning the exercise of those powers, it will normally be the governing body that is treated as the employer.
23. It follows that the governing body of a school with a delegated budget will generally be the respondent in Employment Tribunal discrimination cases brought by members of staff (or job applicants). However, any award of compensation or costs made by a tribunal would have to be paid by the LA where they are the actual employer of the school staff. See the Education (Modification of Enactments Relating to Employment) Order 2003.
WHAT LEGISLATION DOES THIS REFER TO?
FURTHER SOURCES OF INFORMATION
The EHRC has responsibilities in relation to the entire body of discrimination law and can issue statutory Codes of Practice and non-statutory guidance. Non statutory guidance is currently being developed for schools.
For further information on the role of the EHRC and to access their Codes of Practice and advice please refer to their website: http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/.
The Advisory, Conciliation and Arbitration Service (ACAS) is one of the organisations that offers advice to employers on complying with antidiscrimination legislation. As it points out, where effective systems are in place to ensure that an organisation’s staff are treated fairly and with consideration, it is likely to encounter few problems in complying with antidiscrimination legislation. The same applies to the treatment of all members of the school community. Further information can be accessed from the ACAS website: www.acas.org.uk.