What is disability discrimination?
The Equality Act (2010) consolidates existing law, such as the Disability Discrimination Act (1995) 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. More information is available.
There is specific guidance issued for further and higher education providers which addresses protection from discrimination and harassment for students under the following 8 protected characteristics:
- Gender reassignment
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
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 when 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 the course is appropriate for someone with a long term or fluctuating condition. This would be considered unlawful direct disability discrimination as it excludes applicants who may have a disability and results in less favourable treatment than someone without a protected characteristic (disability).
What is Indirect Discrimination?
Indirect discrimination occurs when a provision, criteria or practice is applied and the outcome of this means a student with a disability is placed 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?
This is when a disabled student is treated less favourably 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 tutor requests that the 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 student. Unless this treatment by the seminar tutor can be justified, this is discrimination arising from disability.
Example 2: A disabled student is rejected from a module because of behaviour resulting from their disability
If the University can show that they did not know that the student was disabled and that the behaviour was a result of their disability and could not reasonably have been expected to know that the student had the disability, then this does not amount to discrimination arising from disability. However, if the University was aware of the student's disability, then this may be considered as discrimination arising from 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. Victimisation is also covered under the Act. For more information on both of these areas please refer to the following document: https://www.equalityhumanrights.com/en/publication-download/equality-act-2010-technical-guidance-further-and-higher-education
Further information can be accessed via Direct Gov
What are reasonable adjustments?
In order to comply with disability legislation, higher education institutions are expected to make 'reasonable adjustments'. The purpose of a reasonable adjustment is to avoid the creation of unnecessary barriers. If a disabled student is at a 'substantial disadvantage', responsible bodies are required to take reasonable steps to prevent that disadvantage. This might include:
- the provision of material in other formats
- the delivery of courses in alternative ways
- the provision of interpreters or other support workers
- changes to course requirements or work placements
- changes to policies and practices
- changes to the physical features of the building
Example: A partially deaf student who lip-reads is attending an undergraduate course. One of his lecturers continues to lecture whilst simultaneously writing on the whiteboard. The student requests that the lecturer stops speaking when he is turning his back away from the student to write on the whiteboard so that he can lip read what he is saying. There is a likelihood that the student will be at a substantial disadvantage if this adjustment is not made.
What is reasonable?
When deciding whether an adjustment is reasonable your aim should be, as far as possible, to remove/reduce any disadvantage which may be faced by a student. Consider the following:
- how effective the change will be in avoiding the disadvantage the student is likely to experience otherwise
- its practicality
- the cost
- the University's resources and size
- the availability of financial support
Reasonable steps depend on the circumstances of the case and making adjustments for disabled people is about allowing people with disabilities access to the same level of resources and materials and if necessary using alternative ways of providing these. Student Wellbeing can provide guidance on whether an adjustment would be considered reasonable and help in identifying other adjustments.
Curriculum Design, Teaching and Assessment
When designing the curriculum, assessment and teaching materials, the needs of disabled learners should be taken into consideration. It is important to look at the potential barriers in the curriculum which may unnecessarily exclude disabled learners. This means looking at the programme outcomes; module specifications; learning outcomes; and assessment criteria and deciding whether all learners can achieve these. During this process it may be useful to consider the following questions:
- Are there any alternative ways in which a learner can demonstrate their knowledge and skills?
- Can an alternative assessment be given? If not, what are the reasons (for example is it a professional competence requirement)?
The learning experience should be made flexible to accommodate all learners including those with special educational needs and disabilities. Learners may:
- Have varied listening and learning skills
- Need a more flexible environment
- Need different time scales to absorb different learning
- Require different teaching approaches depending on the subject matter.
With this in mind, practitioners should:
- Develop an environment conducive to learning which will meet the needs of all learners including those with special educational needs and/or disabilities
- Provide options for assessments and where necessary, offer alternative assessment(s) which meet(s) the learning outcomes and the individual needs of students with disabilities.
- Vary learning and teaching methods to enable equal opportunity for all
- Change their delivery style to accommodate the needs of all learners
- Provide learners with any subject specific glossaries or refer them to appropriate published guides/dictionaries/glossaries
- Discuss with the learner how you can work effectively as a team
- Consider using Information Learning Technology with assistive technologies to enable learning (such as interactive whiteboards, audio commentary during lectures using Panopto, placing learning materials on Blackboard, use of Wimba Classroom/Blackboard collaborate; audio feedback)
When teaching disabled learners consider the following:
- Do I have the information I need about the learner's needs to support them fully? (This can be obtained from the Student Support Plan)
- Do I know about the University services?
- Do I need further staff development to feel confident enough to support disabled students in their learning? (Contact your designated Disability Coordinator to highlight staff development needs).
Where can I find out more?
Examples of reasonable adjustments
Example 1: A deaf student is asked to work in a small group. The deaf student uses a British Sign Language Interpreter and the other students in the group complain to the Lecturer that when working with this student, they are being disadvantaged as it takes time for the Interpreter to communicate the information to the deaf student. Whilst the work may take longer, this allows all students to have the opportunity to contribute and as such the disadvantage is mild.
Example 2: A student with a visual impairment is following an online distance learning course. S/he could submit essays electronically but receive marked essays by post with hand-written comments in the margins that they are unable to read. By offering feedback electronically, a reasonable adjustment is made as this is accessible to the student who has appropriate software installed on his/her computer.
Examples of less favourable treatment
Example 1 Enrolment\Induction: A student in a wheelchair cannot participate fully in the enrolment/induction process because it is held at various inaccessible locations around the University. If adjustments are not made to allow the student to complete the enrolment/induction process at accessible locations it may be unlawful.
Example 2 Examinations: A student with dyslexia requires extra time and to use a computer to type answers. If refused this is likely to be unlawful.
Example 3 Lectures: A student who cannot write or take notes easily is prevented, by a tutor, from using a digital recorder in lectures. This is likely to be unlawful. If there are confidentiality issues which would restrict recording then these need to be discussed and the parameters to recording agreed.
Example 4 Accessing Materials: Teaching/learning materials given to all students are not provided in a suitable format to a student with specific needs, when it is the responsibility of the University to do so. This is likely to be unlawful.
How is Disability defined?
The definition of 'disability' under the Equality Act (2010) suggests that a person has a disability if they have a physical or mental impairment.
A disability may arise from a variety of impairments including:
- Sensory impairments, such as visual hearing impairments
- Impairments which have a fluctuating or recurring effect such as rheumatoid arthritis, depression, epilepsy
- Progressive impairments such as motor neurone disease, muscular dystrophy, dementia
- Organ specific which may include respiratory conditions such as asthma, heart disease and thrombosis
- Developmental impairments such as autistic spectrum conditions, dyslexia, dyspraxia, dyscalculia
- Learning difficulties
- Mental health conditions and mental illness such as depression, eating disorders, psychosis, bipolar disorders, obsessive compulsive disorder, and personality disorders
- Impairments produced by injury to the body or brain
- Cancer; HIV; MS (from the point of diagnosis)
The impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities.
'Substantial' means more than minor or trivial.
When considering whether the effect of impairment is substantial, the Equality Act states that this is dependent on the time taken by a person with impairment to carry out a normal day-to-day activity in comparison with a person who is completing the same activity but does not have the impairment.
'Long-term' means that the effect of the impairment has lasted or is likely to last for at least twelve months
The Equality Act states that a long term effect of impairment is one which has lasted at least 12 months, or where the total period for which it lasts, from the time of the first onset is likely to be at least 12 months or which is likely to last for the rest of the life of the person.
'Normal day-to-day activities includes everyday things like eating, washing, walking and going shopping
The Equality Act states that an impairment is considered to affect the ability of a person carrying out normal day-to-day activities if it affects the person in respect of their mobility, manual dexterity(the ability to use hands and fingers with precision), physical co-ordination (this covers balanced and effective interaction of body movement including hand and eye co-ordination) continence(the ability to control urination and/or defecation), ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to concentrate, learn or understand or the risk of physical danger.
Adapted from Directgov (2012) Disability and the Equality Act 2010
Knowledge of students' disabilities and confidentiality
The University is expected to take reasonable steps in order to find out a student's disability. Such encouragement may take many forms:
- Providing the opportunity for individuals to speak to a member of Student Wellbeing staff at Open Days
- Asking the applicant to declare a disability on the UCAS application form
- The Admissions team following up the UCAS application form with a questionnaire to ascertain full details of the disability (access provided to Student Wellbeing)
- Asking applicants if they have a disability and require adjustments to attend an interview or other selection activity.
- Asking the student to declare a disability at enrolment
- Providing opportunities for disclosure to staff by explaining the benefits of disclosure in a non-threatening way ensuring that the student is aware that the institution is a place where a disabled student feels safe to disclose his/her disability by providing an open and welcoming atmosphere.
- Signposting students to the Student Wellbeing Service if you become aware that they have a disability so that appropriate support can be agreed (including a support plan detailing reasonable adjustments).
Once an applicant \ student discloses a disability and provides supporting evidence, the University is then obliged to make reasonable adjustments. If an applicant \ student has disclosed a disability to any individual within the University, it would be taken that the student has disclosed to the University. It is therefore, of the utmost importance, for any member of staff who is informed of a disability, to provide this information to Student Wellbeing. Student Wellbeing will ensure that the University meets its legislative requirements.
The key reason for a student to disclose a disability is to inform the institution (including teaching staff) of that disability in order to get reasonable adjustments put in place. Although this is beneficial and supportive to students, there are also reasons why many disabled students do not disclose disabilities at the time of application to a course. These may include fear of discrimination or labelling as a result of disclosure. The importance of providing a facilitative and enabling environment that encourages disclosure is therefore vital.
What's Happening ...
Senior Fellows of the Higher Education Academy Event
Wednesday, 31 May (9 - 10am)
This session provides an overview of opportunities for Senior Fellows of the Higher Education Academy to become more actively involved with the work of the HEA accredited CPD panel at the University of Derby.
To book your place on this session, click here.