This page provides information on what constitutes discrimination and explains the duties of education providers to not discriminate against pupils based upon protected characteristics.
The Equality Act 2010 protects persons from being discriminated against in day to day life; this page will focus on the impact of the Act in relation to education.
Who does the Act apply to and to whom is a duty owed?
In England and Wales, the Act applies to all maintained and independent schools, including Academies, and maintained and non-maintained special schools. Specific exceptions to the rule do apply and these will be expanded on towards the end of this page.
The Act makes it unlawful for the responsible body of a school to discriminate against, harass or victimise a pupil attending the school, a potential pupil or a former pupil.
There are 3 categories of duty on the responsible body:
- not to discriminate in admissions arrangements and practices;
- not to discriminate in the provision of education and access to benefits, facilities and services;
- to make ‘reasonable adjustments’.
The Act also applies to higher education and further education insitutions in England and Wales including 6th form colleges. It is unlawful for a further or higher education institution to discriminate against an applicant or student in relation to:
- the provision of education;
- access to any benefit, facility or service;
Which areas are protected by the Equality Act 2010?
The Equality Act 2010 makes it unlawful to discriminate against persons with a ‘protected characteristic’. In total there are 9 protected characteristics and they are as follows:
- Gender Reassignment
- Marriage & Civil Partnership
- Pregnancy & Maternity
- Religion or Belief
- Sex (Gender)
- Sexual Orientation
This page will briefly touch on each protected characteristic and how they apply in the context of education. It is unlawful for an education provider to discriminate on the basis of a protected characteristic without an objective and reasonable justification.
Age, as a protected characteristic, does not apply to pupils in schools.
It is unlawful for an education provider to discriminate directly or indirectly against a pupil on the basis of their disability. Additionally, there are certain circumstances where an education provider is expected to take positive steps to ensure that disabled pupils have equal access to education and the provision of services.
See our page on ‘Disability discrimination in education‘ for detailed information in this area.
It is unlawful for an education provider to treat a pupil less favourably because they have undergone gender reassignment, or they are in the process of undergoing gender reassignment.
Marriage & Civil Partnership
Schools must not be discriminatory when providing teaching about marriage and civil partnership. Schools must accurately state the facts about marriage of same sex couples under the law of England and Wales, in a way that is appropriate to the age and level of understanding and awareness of the pupils. No school, or individual teacher, is under a duty to support, promote or endorse marriage of same sex couples. Teaching should be based on facts and should enable pupils to develop an understanding of how the law applies to different relationships.
Pregnancy & Maternity
It is unlawful for an education provider to treat a pupil less favourably as a result of her becoming pregnant, or because she has recently had a baby, or because she is breastfeeding.
Local Authorities have a duty under section 19 Education Act 1996 to arrange suitable full-time education for any pupils of compulsory school age who would not otherwise receive such an education. Pupils of compulsory school age who are pregnant or who have become parents may be entitled to education under this provision. For more information see our page on ‘Education for children out of school‘.
It is unlawful for an education provider to treat a pupil less favourably on the basis of their race. The definition of race includes colour, nationality and ethnic or national origins.
Religion or Belief
It is unlawful for an education provider to treat a pupil less favourably on the basis of their religion or belief, or their lack of religion or lack of belief.
”Religion” includes, for example, all of the major faith groups whereas ”belief” includes non-religious world views such as humanism.
On the other hand, ”lack of religion” or ”lack of belief” refers to persons who do not believe or adhere to a particular religion, such as an atheist.
It is unlawful for an education provider to treat a pupil less favourably on the basis of their gender.
There is an exception to this particular ‘protected characteristic’ that makes single-sex sports permissible. It applies to participation in any sport or other activity of a competitive nature, where the physical strength, stamina or physique of the average woman (or girl) would put her at a decided disadvantage in competition with the average man (or boy).
Additionally, it is not strictly unlawful for a school to have single-sex classes in a mixed school, provided that the classes are provided to pupils of both genders.
It is unlawful for an education provider to treat a pupil less favourably on the basis of their sexual orientation. Schools need to make sure that all gay, lesbian or bisexual pupils, or the children of gay, lesbian or bi-sexual parents, are not singled out for different and less favourable treatment from that given to other pupils.
Which exceptions apply to the Equality legislation?
Single sex schools are able to refuse to admit pupils of the opposite sex.
Schools with a religious character may give priority in admissions to members of their own religion. For more information see or page on ‘School Admissions‘.
Schools with a religious character also have exceptions for how they provide education to pupils and in the way they allow access to other aspects of school life which are not necessarily part of the curriculum. For example, a Catholic school which organises visits for pupils to sites of particular interest, such as a Cathedral, is not discriminating unlawfully by not arranging visits which would be of significance to pupils of other faiths.
How can a discrimination claim be made?
Disability discrimination claims in maintained schools, nurseries, pupil referral units, independent schools, academies and free schools can be made to the Special Educational Needs & Disability First Tier Tribunal. For more information see our page on ‘Disability discrimination in education‘ and our ‘How-To’ guide on ‘Claiming against disability discrimination in schools‘.
Disability discrimination claims in a further education institution can be made in the County court.
Claims against other forms of discrimination by schools can be made in the County Court unless there is a separate appeal procedure available in law, for example, admissions appeals.
We would strongly advise seeking the assistance of a solicitor if bringing a claim in the County Court as it can be a complex process. However, we will briefly outline the steps below:
- Instead of the SEND4A form which would be required for a Disability Discrimination claim to the FTT, the claimant would be required to fill in a county court claim form. A guidance document on completing the claim form can be found here. You would need to file one copy at the court and provide a copy to the defendants.
- There is a court fee associated with bringing a claim in the County Court. The fee you have to pay to the court depends on the amount you are claiming, including interest. There are exemptions for paying court fees if you are in receipt of income based benefits.
- The N1 will ask that you submit a statement of what monetary damages you expect. You do not necessarily have to be specific with regard the to the amount you are seeking, for example, ”the value should be estimated as up to £5,000, between £5,000 and £15,000.
There are three Court tracks to which cases are allocated once proceedings have been issued:
- Small claims track: Typically the hearings are short, the procedure is informal (by County Court standards), there is no requirement for witnesses to give evidence on oath, there is no bundle, the judge has a lot of discretion as to how to run the hearing, and (generally) the judge will make no order for costs. This is the most cost-effective track and has the lowest costs risk.
- Fast track: for claims that are not small enough for the small claims track and not big enough for the multi-track. It is unlikely that a discrimination claim would be allocated to this track
- Multi-track: this is for the biggest claims, whether in terms of money or importance. They will be heard by a Circuit Judge. There will be procedural hearings in the weeks and months beforehand, and then the final hearing may last more than a day. All the usual trial formalities will apply.
- A quashing order. For example, in the case of exclusion, a decision to quash the GB’s decision to uphold the decision to exclude.
- Damages for injury to feelings;
- Any other damages (where appropriate) sustained as a result of the discrimination, such as the cost of home tutoring.
Points to remember
The process for hearing a claim in the County Court will often be much longer than the FTT SENDprocess. It would not be unusual for a case to take in excess of six months.
Whereas in the FTT SEND the judge is only one member of a three-member tribunal, which means that the majority of the tribunal are SEND specialists, in the County Court the judge will be the decision-maker, assisted by an ‘assessor’. An ‘assessor’ is a lay person who has suitable experience of discrimination. Usually, the County Court will borrow a lay member from the local Employment Tribunal to act as an assessor, but you can suggest that they borrow a lay member from the FTT SEND who has judged discrimination cases in the past. The judge will likely have little experience in education and discrimination law.