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Obligations of nursery and childcare providers and complying with the Equality Act 2010

View profile for Abigail Martland
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Coronavirus and children in care or care proceedings

The Equality Act 2010 legally protects people from discrimination, by ensuring that unfair treatment on the basis of certain personal characteristics, such as disability, is against the law in almost all cases.

The protected characteristics are:

  • age
  • gender reassignment
  • being married or in a civil partnership
  • being pregnant or on maternity leave
  • disability
  • race including colour, nationality, ethnic or national origin
  • religion or belief
  • sex
  • sexual orientation

All early years settings, whether in the statutory, independent or private sectors, including childminders, must comply with the act.

Save for some exceptions, direct discrimination under the Act involves treating a person less favourably than another because of a protected characteristic. It is a claim closely associated with those of harassment and victimisation. Under the act indirect discrimination occurs when a policy, procedure or practice is applied which adversely affects one protected group more than another and cannot be objectively justified.

The law also protects people if they are wrongly perceived as holding a protected characteristic, or if they are associated with someone who has one, such as being a parent of a disabled child. It also provides protection to individuals against discrimination arising from disability and failure to make reasonable adjustments for those who hold disabilities.

The general duty of a provider of statutory services are required to have due regard to the need to:

  1. Eliminate discrimination and other conduct that is prohibited by the Act, and;
  2. Advance equality and opportunity between people who share a protected characteristic and more importantly, those people who do not share it.

If you are a provider of services in the private sector, then you are required to have due regard to the need to:

  1. Not discriminate against a person requiring the service, by not providing them with the service;
  2. Ensure that the terms that you provide the service to the person is not discriminatory, or unfavourable;
  3. Terminate the service to the person, because of their protected characteristic, or;
  4. Subject them to any other detriment.

This involves removing or minimising any disadvantages suffered by people due to their protected characteristics and taking reasonable steps to meet the needs of people with protected characteristics, where their needs are different from those of others.

How early year settings can comply with the Equality Act 2010

In general, many settings should already be complying with the Act in developing their practices, to take into consideration:

  • the Early Years Foundation Stage (EYFS);
  • Ofsted inspection requirements;
  • The provisions of Education and Health Care Plans specific to individuals in their care and;
  • The increasing availability of supportive resources, training and advice.

Settings need to understand the impact of their policies and practices upon people with protected characteristics. For example, the collection, analysis and evaluation of equality information on admissions and employment (at all levels) should assist in identifying any discriminatory practices. This will help to make informed choices and decisions. The information will also be required by the relevant local authority in monitoring its own duty.

The draft revised EYFS statutory framework 'provides equality of opportunity and anti-discriminatory practice, ensuring that every child is included and supported'. It also requires settings to 'have and implement a written policy to promote equality of opportunity for children in their care' and lists what it must include.

The way children are treated in their critical earliest years affects their future lives. The Equality Act 2010 provides a basic framework for ensuring that each one can maximise their potential, free from the constraints of discrimination and prejudice and their damaging consequences. However, it needs those responsible for delivering education and care in the early years to ensure the Act is implemented effectively so that these aims can be achieved.

Examples of discrimination in a nursery setting

A well-publicised case hit the news in 2023, regarding a nursery treating a child with special educational needs ‘less favourably’ than their peers. Despite having a dedicated classroom assistant and the provision of 22.5 hours of classroom support each week, the nursery told the child’s family that she would need to start school 15 minutes later each day than all the other children in her class, as well as finishing 15 minutes earlier. The justification for such treatment was unfortunately not publicised.

As a result of the treatment the child had been subjected to, the parents had no choice but to remove her from the nursery.

The nursery subsequently accepted that they failed to make reasonable adjustments for her and treated her unfavourably, as a result of her disability, compared to other children who did not share her protected characteristic. It is understood that, after seeking advice from the Equality Commission, the parents pursued the matter for approximately two years, before settlement was reached.  

A spokesperson for the Equality Commission noted “all children must be provided with opportunities to flourish at school, regardless of whether or not they have a disability”.  

Can alleged discriminatory treatment ever be justified?

This is ultimately decided on a case-by-case basis. However in some circumstances, a setting may be unable to meet their legal obligations and duty of care to all children in their care by attempting to provide equal or more favourable treatment to a child with a protected characteristic. It is important that a balancing exercise is conducted between the business needs and duties and the discriminatory effect upon the individual, as well as being able to show that the setting has given consideration to alternatives that might achieve the same result, without being disadvantageous to the child in question.

How can we help?

If you are operating a nursery or childcare setting, and you are unsure about where discrimination may arise or you have been subjected to a complaint of discrimination by a parent, we may be able to offer you advice on how to deal with the complaint and review any discriminatory policies, that could give rise to further complaints/claims against you.

The discrimination law department at Stephensons are experts in their field at advising both individuals and small businesses across the country. If you require advice, please do not hesitate our specialist employment & discrimination law teams for advice on 0161 696 6170.