The legislation identifies nine ‘protected characteristics’ which are granted protection from ‘prohibited conduct.’ Prohibited conduct includes direct and indirect discrimination, victimisation and harassment. One of the protected characteristics of the Act is disability, but the term encompasses a broad range of medical conditions, physical disability and mental illness. All schools in England have obligations under the Equality Act not to discriminate against disabled pupils or staff. There is no discrimination if the school does not know, and could not reasonably know, that an individual is disabled. However, schools are expected to take positive steps to find out.
The Equality Act defines disability as ‘a physical or mental impairment which has a substantial, long term and adverse effect on the ability of an individual to carry out day to day activities.’ The problem will need to either have lasted at least 12 months, is likely to last 12 months, or is likely to recur. The focus therefore is on the effect the mental health issue has on daily life. It is not about diagnosis or even medication or treatment. Protection is also granted to those who have suffered with a mental health problem in the past which has had a substantial, long term and adverse effect on their daily life.
The law on disability discrimination is different from the rest of the Equality Act in that it works in only one direction. It protects disabled people but not people who are not disabled. Schools are allowed to treat disabled people more favourably than non-disabled people. For example the law requires sites to make reasonable adjustments so that disabled people are not at a disadvantage and are able to participate in work or education as fully as possible. In terms of mental health, this could take the form of providing a dedicated teaching assistant to a pupil suffering with anxiety or offering flexi-time options to a staff member with depression.
A school is permitted to positively discriminate in favour of disabled people. The Equality Act contains provisions which enable schools to take action to tackle disproportionately low participation of a particular pupil group, or recruit someone because of their protected characteristic, in preference to another candidate. These are known as the ‘positive action provisions.’ The Public Sector Equality Duty requires schools to take a more proactive approach to promoting disability equality and eliminating discrimination. It requires proprietors to communicate with disabled staff and students, identify the barriers and review systems in order to take proactive and proportionate measures to overcome discrimination.
Unlawful discrimination can take a variety of forms and occurs when prohibited conduct is perpetrated because of a protected characteristic. The fact that mental illness is classified as a disability under the terms of the Equality Act means that many people overlook the illegal discrimination being carried out against those suffering with mental illness in an education environment. The following examples will demonstrate the indirect, prejudicial, passive and aggressive manifestations of unlawful discrimination. For the purpose of these examples, it is assumed that the individual is recognised as disabled under the terms of the Equality Act.
- A depressed teacher is not shortlisted for a promotion due to his illness, despite being entirely qualified. His employer is directly discriminating against him by denying a career opportunity due to a protected characteristic. This is still direct discrimination even when it is cited amongst others reasons. It is not possible to justify direct discrimination, it will always be unlawful. Discrimination can also be perpetrated on the grounds of dual characteristics; this is known as combined discrimination.
- A teacher would be indirectly discriminating against a female student with the disability of social anxiety under the Act, by having an after school club where the terms of inclusion deliberately set her at a disadvantage through the requirement to publicly speak. This is indirect discrimination, as although this is an equally applied pre-requisite to attend the club, it unfairly disadvantages the student suffering with social anxiety. It is irrelevant that the school did not intend to disadvantage a disabled pupil with a policy.
- A pupil finds he is not included in extra-curricular opportunities as his best friend, from whom he is inseparable, has bipolar disorder. He is being discriminated against through his association with his friend who has a protected characteristic.
- A pupil with post-traumatic stress disorder starts at a new school. Their condition is aggravated by crowds, but no steps are taken to put them at less of a disadvantage in a busy and stressful school environment, this is discrimination arising from disability. Discrimination arising from disability occurs when a disabled person is unfavourably treated because of something connected with their disability and the school cannot justify such treatment. This is most commonly when a reasonable adjustment which can be made, is not.
- A staff member is subject to jokes by colleagues around his obsessive compulsive disorder, they believe this is harmless but it upsets him by making him feel marginalized and belittled. This is harassment. Harassment is defined as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Employees will be able to complain of behavior that they find offensive even if it is not directed at them and the victim need not possess the relevant characteristic themselves.
- A staff member reported a senior manager for teasing her friend who has an eating disorder, the manager has now turned aggressive attacks on her. This is a form of victimisation. Victimisation occurs when an employee or prospective employee is treated badly because they have done something in relation to the Equality Act. This could be raising a grievance or supporting a colleague doing so.
- Finally, discrimination can occur when an individual is perceived to have a protected characteristic when in fact they do not. A pupil is quiet and a staff member takes it upon themselves to limit the group work they undertake, believing them to have a mental health problem, causing reclusive habits. A mistake does not excuse discrimination.
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