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. If a student lives in Northern Ireland, where the law is different, then they may wish to contact NI Direct.

We discuss:

As we are discussing legislation we will occasionally use ‘disabled’ as a generic umbrella term that includes autism.

The meaning of ‘disability’

The Equality Act 2010 Technical Guidance states that a person has a disability if:

“they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities.”

‘Mental impairments’ include autism but students do not have to have a diagnosis to be considered disabled.

The Act protects students, prospective students and, in limited circumstances, former students from discrimination in further and higher education.

What is covered by the Equality Act

An FE or HE education provider must not discriminate against a disabled student in relation to:

  • admissions
  • how education is provided
  • exclusion
  • any other disadvantage, denial of opportunity or choice.

How education is provided includes:

  • teaching
  • assessments and exams
  • facilities, including lecture halls, libraries and IT
  • leisure, recreation, entertainment and sports facilities
  • physical environment
  • disciplinary procedures. 

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.

Discrimination may still occur even 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

Next we discuss the following types of disability discrimination: 

Direct 

Direct discrimination is when a person is treated less favourably than others because of their disability.
  
It can also be discrimination based on association, for example,  treating a student less favourably because of their association with an autistic 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 autistic.
 
Example:

An autistic 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.
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. For example, the Equality Act permits single-sex institutions to admit students of only one sex without this being unlawful direct sex discrimination.

 

Indirect 

Indirect disability discrimination occurs 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 for example in order to maintain standards or to ensure the health, safety and welfare of students.

Example:

A college or university offers a science course based at two different sites. This means that students need to attend lectures at one site, then immediately afterwards have to go to a practical session at the other site. This may disadvantage autistic students if they experience difficulties relating to mobility/anxiety/sensory sensitivities, and is likely to be unlawful disability discrimination unless it can be justified. 

Discrimination arising from disability

Discrimination arising from disability occurs if a student is treated unfavourably because of something connected to their disability and the response – for example asking the student to leave a tutorial – cannot be justified. However, it won’t be unlawful if the person who discriminates did not know, and could not have reasonably been expected to know, that the person had a disability.  

Examples:

An autistic student is often outspoken in tutorials - the tutor considers him ‘disruptive’ and asks him to stop attending. Given the student has difficulties with social communication, this is likely to be discrimination arising from disability, unless the tutor’s response can be justified. 

An autistic student needs to take some time away from their studies due to health reasons associated with autism. The college does not record disability-related absences separately from general absences. It then takes disciplinary action when the student has exceeded the permitted number of absences in a term. As the absence was related to the student’s disability, this action would be discriminatory unless the college can justify the action the action as being a proportionate means of achieving a legitimate aim. An example of a legitimate aim would be for the college or university to maintain academic standards. 

However in the last example, is disciplinary action a proportionate way of achieving that aim? A more proportionate response may be for the college or university to:

  • provide appropriate support for the student
  • make tailored reasonable adjustments to reduce the student's anxieties

Education providers can often prevent unfavourable treatment which would amount to discrimination arising from disability by identifying and implementing reasonable adjustments. 

Reasonable adjustments

Colleges and universities have a duty to make reasonable adjustments to avoid putting disabled students at a substantial disadvantage compared to non-disabled peers. This applies to:
  • provisions, criteria and practices - the way in which a college or university operates on a daily basis, for example an exclusion or discipline policy
  • physical features such as entrances and exits, toilets, lighting, flooring and furniture
  • auxiliary aids and services such as supportive equipment or a member of staff. 

The duty to make reasonable adjustments does not apply to ‘competence standards’ which colleges and universities use to determine whether or not a student has a particular level of competence or ability – for example scoring at least 50% in an assessment. However reasonable adjustments must be made to ensure that the assessment process itself does not disadvantage disabled students.

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: a college does not have to lower the pass mark for autistic students. However, it might be considered a reasonable adjustment to give an autistic person longer time in which to complete an exam and/or a laptop if their disability causes them to write more slowly.

Further examples of reasonable adjustments that can be made to how an exam is conducted (also known as ‘Special arrangements’) can be found in our exam guidance. An adjustment would not be considered reasonable if it affects the security or integrity of the assessment.

A recent Tribunal ruling means that schools/colleges must make sure they have made appropriate reasonable adjustments for autistic students, or those with other disabilities, aged under 18 before they can exclude them.

A loophole in the Equality Act meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse' - even when that was caused by a lack of appropriate support. However, this loophole no longer applies and allowances should be made for behaviour that is due to a student’s autism and needs not being met. Colleges and universities need to ensure that reasonable adjustments are made to allow students to fully participate in their education.

While the ruling applies to all children in any education setting, including colleges, it is hoped that all institutions will consider its implications for their autistic students. 

When considering reasonable adjustments education providers should consider:

  • is the student at a substantial disadvantage, such as falling behind with coursework?
  • could the disadvantage be avoided, for example by using one-to-one support or specialist teaching
  • is it reasonable for the provider 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
  • the resources the education provider has, and the costs and practicality of making the adjustment
  • the type of education or other benefit, facility or service being provided
  • how being autistic affects the individual
  • the extent the pupil is supported through other means for example Disabled Students Allowance
  • the health and safety requirements
  • the interests of other students and people.

Examples of reasonable adjustments:

  1. An autistic student has difficulty processing information in lectures. The lecturer provides a printout of the PowerPoint presentation prior to the lecture, and organises one-to-one time with the student after the lecture to discuss its content.
  2. A college or university decides that all same subject classes be held in one site rather than two, or they ensure that students with mobility or anxiety issues are given enough time and support to transition between sites. This could eliminate any potential discrimination.
  3. Colleges take into account the reasons why an autistic student is upset and using inappropriate language during a tutorial. For example the tutor may have missed a tutorial session, causing the student distress as they find it difficult to cope with unexpected changes. As a result, the college does not suspend the student for this incident.   

It is unlawful for a college or university to ask a student to pay for reasonable adjustments.

To help them avoid unlawful discrimination, education providers should:

  • plan in advance, anticipate the requirements of autistic students and review the reasonable adjustments in place
  • offer a variety of opportunities for students to disclose that they are autistic, including at the pre-entry and admissions stage
  • ask autistic students for their views on reasonable adjustments and consult local and national disability groups
  • properly maintain auxiliary aids and have contingency plans in place in case of failure
  • encourage staff to develop additional skills for working with autistic students
  • ensure staff are aware of the duty to make reasonable adjustments and understand how to communicate with autistic students so that reasonable adjustments can be identified and made.

Harassment and victimisation

If a student has made a complaint about discrimination, it is unlawful for a college or university to harass or victimise them or anyone else who has helped with the complaint.

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 – for higher education in England and Wales the Office of the Independent Adjudicator (OIA) , in Scotland the Scottish Public Services Ombudsman, and the Education and 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.

If a student feels that their exclusion from college or university in Great Britain is the result of disability discrimination, they can get more information and advice in our Exclusion from college or university (Great Britain) guide

Useful reading

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: 31 January 2019