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Discrimination in higher education settings

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Was removal of disabled student from university discrimination?

Discrimination is the unequal treatment of individuals because of a protected characteristic as defined under the Equality Act 2010. This includes discrimination relating to an individual’s race, gender, disability and/or sexual orientation, to name a few.

Universities and colleges must comply with their duties set out in the Equality Act 2010. If an individual is subjected to a university failing in their duties under the act, they may be able to bring a claim for discrimination in the County Court. It must however be borne in mind that if they are to do so then it must be done within six months less one day of the act of discrimination.

What is the definition of disability?

Under the Equality Act 2010, a person with a disability is someone who has physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out day-to-day activities.

For example, if a person is diagnosed with a condition and the effect of that condition prohibits them from going about their day to day activities and this lasted or will last for more than 12 months, this person would likely be regarded as having a disability under the Equality Act 2010.

Claims of discrimination

The possible claims of discrimination under the Equality Act 2010 are:

Direct discrimination

Direct discrimination in this scenario is where a person is treated less favourably due to their disability.

For example: a prospective student applies to study Law at a university and attends an interview at the campus. During the interview, the student discloses to the interviewer that they suffer from a disability and because of this, the prospective student is not awarded a place on the course.

Indirect discrimination

Indirect discrimination occurs where a university applies a provision, criterion or practice to all students which puts students with disabilities at a disadvantage when compared to others.

For example: A university implementing  a provision, criterion or practice to only allow students to take handwritten lecture notes may put a student with a sight impairment at a disadvantage when compared to others.

It is important to note that even if it can be established that the student has been put at a disadvantage due to the provision, criterion or practice, the university may have a defence if it could prove that the implementation of the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

Discrimination arising from disability

Discrimination arising from disability is where a person is treated unfavourably because of something arising in consequence of that disability.

For example: a student suffers with mental health difficulties and due to their condition, they require some absence from lectures, but this is not tolerated by the university and they are therefore withdrawn from their course.

However, like with indirect discrimination, the university may have a defence available if they can show that the treatment is a proportionate aim of achieving a legitimate aim.

Failure to make reasonable adjustments

A failure to make reasonable adjustments is where a person with a disability makes a request to their university for certain adjustments to be made to ensure that their disability is not a barrier to their access to education and the university does not make the adjustments.

For example: a student with photosensitive epilepsy makes a request to their university for a screen filter or monitor without flicker. However, the university fail to implement this adjustment on the basis that the screen filter would cost a minimal sum.

Whether a university is obliged to implement a reasonable adjustment will depend upon the reasonableness of the adjustments requested. As a result, the university will consider factors such as the cost and practicality of implementing the adjustment and what level of disruption would be caused by doing so.

Harassment

Harassment is where a person has been subjected to unwanted conduct relating to their disability and the conduct has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment to that person.

For example: a student who has Tourette's is openly and repeatedly referred to in a derogatory manner by their tutors due to their tics.   

In deciding whether the conduct constitutes harassment, the court will consider the person’s perception of the comments made to them, the other circumstances of the case and whether it is reasonable for the conduct to have the effect of violating that person’s dignity.

Victimisation

Victimisation could occur where a person is subjected to a detriment because they have raised a complaint of discrimination or have supported another individual who has raised such a complaint.

For example: a student believes that they are being treated differently by a lecturer because of their disability and raises a complaint. A day after raising the complaint, the student is informed that they are being removed from the course.

If you feel that you have been a victim of discrimination, please contact our specialist discrimination law team on 0161 696 6170.

By Carrie Higgins, employment and discrimination law team

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