Here you'll find advice on disability discrimination in colleges, universities and other settings providing further (FE) and higher education (HE) in England, Wales and Scotland.
We talk about the meaning of the word disability and what is covered by the Equality Act. We also look at types of discrimination, reasonable adjustments and what students can do if they feel they have been discriminated against.
The meaning of ‘disability’
The Equality Act 2010 describes a disabled person as someone who has:
“a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.”
This act protects students, prospective students and, in limited circumstances, former students from discrimination in further and higher education
Mental impairments include autism and most autistic people are likely to fit this description, but you do not have to have a diagnosis to be considered a disabled person.
What is covered by the Equality Act
An FE or HE education provider must not discriminate against a disabled student in relation to:
- how education is provided
How education is provided includes:
- assessments and exams
- facilities, including lecture halls, libraries and IT
- leisure, recreation, entertainment and sports facilities
- physical environment
- disciplinary procedures.
It is also unlawful for FE or HE settings to harass a disabled student or to victimise them, their parent or anyone else that has or is thought to have made or helped with a complaint about discrimination.
While further or higher education institutions have responsibility towards disabled pupils for internal exams, it is also unlawful for general qualification bodies (GQBs) and other qualification bodies, such as the General Medical Council, City and Guilds and the Law Society, to discriminate against students taking formal examinations. Further information can be found in our exam guidance.
There are certain impairments that aren’t deemed to be a disability under the act, one of these being a ‘tendency to physical or sexual abuse of other persons’. For example, if a student is excluded from college or university for being violent towards others the setting can argue that the student’s impairment is not covered by the Equality Act, even though this may be due to autism and their needs not being met properly.
Further information and advice is available from the Equality Advisory Support Service.
Discrimination may still occur if the setting believes that they are acting in the best interests of a student.
College and education, health and care plans (England only)
Some disabled students in further education may have an education, health and care plan
(EHC plan). The disability discrimination duties are not intended to replace those which provide extra help in college. They should work alongside each other to ensure support is provided for disabled students when necessary.
Types of discrimination
Direct discrimination is when a disabled person is treated less favourably than others.
It can also be discrimination based on association, such as treating a student less favourably because of their association with a disabled person, such as a friend or family member, or discrimination based on perception, treating a pupil less favourably because they’re mistakenly thought to be disabled.
- A disabled student is excluded from a course trip because the education provider believes that they will not get the same benefits as other students or no attempt is made to make activities accessible.
- Excluding a student because they are autistic or having an admissions policy not to admit autistic students.
It is not possible to justify direct discrimination, so it will always be unlawful. While FE or HE settings can have course requirements, these must be necessary and reasonable adjustments may need to be made to allow the disabled student to meet them.
If a policy or practice is applied in the same way to everyone, but it puts a disabled student at a disadvantage. That is unless it can be justified eg in order to maintain standards or to ensure the health, safety and welfare of students.
- A college or university offers a science course based on two sites, meaning that students need to attend lectures on one site followed immediately afterwards by a practical session at the other site. This disadvantages students who will struggle to do this due to mobility impairments or anxiety and is likely to be unlawful disability discrimination, unless it can be justified.
Discrimination arising from disability
If a disabled student is treated unfavourably because of something connected to their disability and the treatment can't be justified or if the person who discriminates did not know and could not have reasonably been expected to know that the person had a disability.
- A student known to have autism often speaks out of turn during tutorials as a result of their disability. This can create a disruption for the tutor and other students. Because of his behaviour, his tutor asks him not to attend tutorials. This is likely to be discrimination arising from disability, unless the treatment can be justified.
- A disabled student takes a number of days off their course for reasons due to their impairment. The college does not record disability-related absences separately and simply notes their absence. The college then takes disciplinary action based on the fact that the student has exceeded the permitted number of absences in a term. The reason for the disciplinary action is the disability-related absence so this would be discrimination arising from disability, unless the college could justify the action.
Education providers can often prevent unfavourable treatment which would amount to discrimination arising from disability by identifying and implementing reasonable adjustments
Colleges and universities have a duty to make reasonable adjustments to avoid putting disabled students at a substantial disadvantage. This applies to:
- provisions, criteria and practices, eg formal or informal policies, rules, arrangements, criteria, procedures and activities.
- physical features, such as entrances and exits, toilets, lighting, flooring and furniture.
- Auxiliary aids and services, eg supportive equipment or a member of staff.
This duty does not apply to ‘competence standards’ which are used to determine whether or not a person has a particular level of competence or ability.
However, it applies to the process of demonstrating whether a person meets the competence standard. For example, the mark required to pass an exam would be a competence standard, so wouldn’t be subject to the duty to make reasonable adjustments. However, there might be a reasonable adjustment to give a disabled person a longer time in which to complete an exam if their disability causes them to write more slowly.
When considering reasonable adjustments education providers should consider:
- Is the student at a substantial disadvantage? eg falling behind with coursework
- Could the disadvantage be avoided? eg by one-to-one support or specialist teaching
- Is it reasonable for them to take these steps?
The term ‘reasonable’ is not defined in the Act, but things that are likely to be taken into account are the:
- extent to which the disadvantage would be overcome
- resources the education provider has, and the costs and practicality of making the adjustment
- type of education or other benefit, facility or service being provided
- effect of the disability on the individual
- extent the pupil is supported through other means eg Disabled Students Allowance
- health and safety requirements
- interests of other students and other people.
Examples of reasonable adjustments:
- A disabled student has an impairment that means fatigue causes him to need short rest breaks. For the last 15 minutes of each class, the tutor asks students to complete a written exercise. Before this exercise, the tutor allows the student a short rest break so that the student can then participate in the written exercise. A delay to other students is unlikely to be considered a sufficient reason not to do this.
- A college or university offering its courses either on one site or the other, or giving more appropriate time allowances and other help needed to allow students with mobility impairments to travel between sites. This could eliminate any potential discrimination.
- If, in the case of an autistic student shouting and using inappropriate language during a tutorial, colleges take into account the circumstances behind this. For example, the tutor may have missed a tutorial session and this caused distress to the student who finds it difficult to cope with unexpected changes and struggles to express their emotions appropriately. As a result, the college does not suspend the student for this incident.
Whatever reasonable adjustments are made, the student mustn’t be charged.
To help them avoid unlawful discrimination education providers should:
- plan in advance, anticipate the requirements of disabled students and review the reasonable adjustments in place
- offer a variety of opportunities for students to disclose their disability, including at the pre-entry and admissions stage
- ask disabled students for their views on reasonable adjustments and consult local and national disability groups
- properly maintain auxiliary aids and having contingency plans in place in case of failure
- encourage staff to develop additional skills for working with disabled students
- ensure staff are aware of the duty to make reasonable adjustments and understand how to communicate with disabled students so that reasonable adjustments can be identified and made.
What students can do if they have been discriminated against
If a student feels they have been discriminated against they can:
- ask to meet with their tutor or disability advisor to discuss the situation
- contact the Equality Advisory and Support Service for advice
- follow the written complaints procedure - student support services and student unions may be able to help. There is also Government Equalities Office guidance on helping students decide if they have a valid complaint and how to approach and question their education provider
- access conciliation and mediation services eg for higher education, the Office of the Independent Adjudicator (OIA) in England and Wales and Scottish Public Services Ombudsman or the Skills Funding Agency for further education in England
- make a claim for unlawful discrimination to the county court in England and Wales or the sheriff court in Scotland. Claims of disability discrimination should be made within six months of the unlawful act or latest act. Legal advice should be sought beforehand.
A county or sheriff court can:
- declare whether unlawful discrimination, harassment or victimisation has taken place
- require the education provider to do something (such as to admit the student) or to prevent them from repeating any discriminatory act in the future
- order the education provider to pay the student compensation
- order either the student or education provider to pay legal costs.
What equality law means for you as a student in Further or Higher education, 2014. Equality and Human Rights Commission.
Equality Act 2010 Technical Guidance on Further and Higher Education, 2014. Equality and Human Rights Commission.
Last reviewed: 5 December 2016.