Disability discrimination and exclusion – avoiding the pitfalls

Like all schools, independent schools are subject to the Equality Act 2010, and so are prohibited from discriminating against pupils who are disabled. When a disciplinary issue arises in relation to a disabled pupil it is, therefore, always advisable to give particular consideration to the requirements of the act, in order to minimise the risk of a discrimination claim.

Discrimination claims

Parents of a disabled pupil (or the pupil, if they are over 16) can bring a complaint of disability discrimination to the independent First-tier Tribunal (Special Educational Needs and Disability). While the tribunal does not have the power to award compensation, it can grant any other remedy it considers appropriate.

The courts have recently confirmed that this can include the tribunal ordering an exclusion to be reversed, and for a pupil to be reinstated at the school, in order to remedy the discriminatory effect of exclusion. In addition, failure to comply with an order of the tribunal may be considered a contempt of court, which can lead to further sanctions (in principle up to imprisonment of the proprietor of the school). 

When the act applies

The Equality Act applies in relation to pupils who have a ‘disability’, as defined in the act. The definition covers mental and physical impairments which have a long-term and adverse effect on a pupil’s ability to carry out normal day-to-day activities. It is not necessary for a pupil to have a medical diagnosis (or any particular diagnosis) for them to be disabled, if it is clear that they have an impairment.

While schools are not expected to diagnose conditions, if a pupil’s conduct repeatedly causes concerns over a period of time, then the possibility that this arises from an underlying disability should be considered as part of any disciplinary process.

Disciplinary procedure

All schools are required to have a pupil behaviour policy, and it would always be advisable for this to address disability issues expressly and set out how the school will ensure that it complies with its obligations under the Act.

In considering whether to exclude a disabled pupil, the school may not discriminate by placing them at a detriment because of something arising ‘in consequence of’ their disability. It is therefore important to consider whether the pupil’s conduct arose, wholly or partly, due to their disability. While the fact that a pupil is disabled does not necessarily mean that all of their conduct will arise from their disability, in the case of some impairments (for example autism) that is highly likely to be the case, and particular care should be taken before concluding that there is no link. If it did, then in order to exclude a pupil, the school would need to be able to show that doing so was a proportionate means of achieving a legitimate aim.

Proportionate and legitimate

There will generally be a legitimate aim to disciplinary action (such as implementing the school rules, or protecting the safety and welfare of others). Showing that exclusion is proportionate for a disabled pupil requires also showing that there was not a less serious alternative to exclusion.

In particular, the Act requires that schools make reasonable adjustments to avoid disabled pupils being placed at a substantial disadvantage, and if a school has not done so then it may be difficult to show that an exclusion is proportionate. What is required by way of adjustments will depend on the pupil’s particular needs, but if a disabled pupil is having difficulties then consideration should be given to the steps that the school can reasonably take for them.

Adjustments may include putting in place additional support, strategies or equipment, where reasonable. However, it might also mean, at least in the first instance, seeking further advice, either directly from relevant professionals (such as an educational psychologist), or through the parents or potentially the local authority, in order to consider what other support can be arranged.

My tip

Ensuring that your processes take into account the requirements of the Equality Act and considering the school’s obligations under the act before any decision is made may take a little longer, particularly if reasonable adjustments need to be made. However, taking the time to consider this at the outset, and being able to show that that has been done, can significantly reduce the risk of having a claim brought, and also improve the prospects of successfully defending a claim (as well as potentially avoiding the need for exclusions).

Contact Sinclairslaw and whatever your need, our expert team of solicitors can help with straightforward advice that you can trust.

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