What is disability discrimination?

The Equality Act (2010) consolidates existing law, such as the Disability Discrimination Act (1995) and the Special Educational Needs and Disability Act (2001), into a single legal framework and whilst many of the concepts of discrimination have not been changed, there are some areas that were not covered in previous law.

Unlawful discrimination is defined in the Act as:

  • Direct discrimination
  • Indirect discrimination
  • Discrimination arising from disability
  • Failure to make reasonable adjustments (for disabled people )

What is Direct Discrimination?

Direct discrimination occurs whereby a disabled student is treated less favourably than another student because of a protected characteristic (disability).

Example: A higher education institution rejects an application from a prospective student who has a disability as they do not think it is appropriate for a disabled person to be accepted onto a course. This would be considered unlawful direct disability discrimination as the person is being treated less favourably than another person because of another protected characteristic (disability).

What is Indirect Discrimination?

The new law protects individuals from indirect discrimination which occurs when a provision, criteria or practice is applied and the effect of this puts a student with a disability at a disadvantage. This can take many forms such as denial of opportunity or choice, rejection or exclusion.

Example: A lecturer uses a video in a session, and fails to take into account the needs of a student who is deaf (does not ensure that the video has subtitles).

What is Discrimination arising from disability?

If a disabled student is treated unfavourably because of their disability and you:

  • Put them at a disadvantage
  • You cannot justify the treatment by demonstrating that it is a means of achieving a legitimate aim.

Example 1: A student who has dyslexia often asks questions over and over when asked to complete seminar tasks and this results in other students becoming distracted. As a result of this questioning, the seminar tutor requests that the disabled student does not attend seminars in future, and there is no consideration of reasonable adjustments which may be put into place to meet the needs of the individual student. Unless this treatment by the seminar tutor can be justified, this is discrimination arising from disability unlesshe/she can demonstrate that he/she did not know the disabled student had the disability in question, however, if the seminar tutor is aware of the disability, he/she will be unable to claim that they are unaware of the disability.

Example 2: A student is rejected from a module because of their disability.

If an institution can show that they did not know that the disabled person had the disability in question and could not reasonably have been expected to know that the disabled person had the disability, then this does not amount to discrimination arising from disability, however if the institution knows of a student's disability, then they will not be able to claim that they did not know of the disability.

What else is unlawful under the Act?

The Equality Act (2010) prevents higher education institutions from harassing students. Harassment is defined as unwanted behaviour related to disability which violates an individual's dignity or creates an intimidating, hostile, degrading humiliating or offensive environment. Please refer to the Direct Gov website.

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