All schools, whether maintained or independent, are subject to the provisions of the Equality Act 2010. Every school is therefore under a duty not to discriminate against pupils (or indeed prospective and former pupils) in relation to:
Its admissions procedures.
The provision of education.
Access to any benefits, facilities or services.
Who is protected?
Pupils with any of the “protected characteristics” set out within the Equality Act and relating to education fall within its protection. These protected characteristics are: sex, race, disability, religion or belief, sexual orientation, gender reassignment, and pregnancy or maternity.
It is unlawful for schools to discriminate against pupils (whether directly or indirectly), harass or victimise them because of any of the above characteristics. In addition, schools also have a duty to make reasonable adjustments in relation to any disabled pupils where a “provision criterion or practice” applied by the school or any physical features of the premises places them at a substantial disadvantage. This is in addition of course to the duties under the SEN framework and to prepare accessibility plans and strategies.
However, there are number of exemptions in the Equality Act which apply to schools – for example, in relation to schools with a religious character or single-sex schools, who need to be able to legitimately treat groups of pupils differently. The rest of this article considers in more detail some of the more problematic areas in this respect.
An exemption in the Equality Act applies to single-sex schools in relation to admissions so that, for example, a girls’ school will not be considered to have discriminated against potential male pupils by refusing to offer them a place. It is also lawful for a single-sex school to admit some pupils of the opposite sex (and this can be limited to a small number) and also only to particular classes.
Schools with a religious character may also give priority to pupils of that religion. However, maintained schools must also comply with the Department for Education’s Schools Admissions Code 2012 which provides that this may only be done when the school is oversubscribed. Independent schools are not subject to the Admissions Code and so can set their own admissions criteria, however, they still must not discriminate against pupils with any of the protected characteristics, for example, by charging overseas pupils higher fees.
It is not necessarily unlawful to have single-sex classes in a mixed school, provided that you have carefully considered the reasons for doing so and that it does not give pupils in these classes an unfair advantage (or disadvantage) compared to others.
For example, it could be lawful to teach sex education to single-sex classes, provided that the classes are provided to both boys and girls. The Equality Act also contains an express exception when it comes to single-sex games or sports. This applies where the physical strength, stamina or physique of the average girl would put her at a disadvantage when compared with the average boy.
It is therefore permissible to have a boys’ only football team, however, the school would have to allow equal opportunities for girls to participate in comparable sporting activities.
Benefits, facilities and services
The requirement not to discriminate against pupils in providing access to benefits, facilities or services is really very wide and covers most aspects of school life, from teaching and learning, to extra-curricular activities, school trips and careers advice.
However, there are also a number of elements of education which are specifically excluded from the ambit of the Equality Act.
Possibly the most important exemption is that of the school curriculum itself. What this means is that a pupil cannot bring a claim objecting to any content of what he or she is taught in school. However, the delivery of the curriculum is covered by the Equality Act.
This distinction is best illustrated by an example: a Jewish pupil could not object to having to study the Holocaust as this relates only to content, however, if in teaching this subject, the teacher uses derogatory language about Jewish people, this would be caught as it relates to the delivery.
Collective worship is also excluded, so that a child of a different faith could not claim that they were being treated less favourably because objects of a school’s faith, such as the Bible, were given a special status in the school.
Faith schools can also have daily acts of worship without having to provide an equivalent for other faiths. Also, faith schools are broadly free to celebrate religious festivals, for example putting on a nativity play at Christmas or celebrating Eid, without having to host similar events for other religions.
The issue of school uniform has generated much press coverage over the last few years and there has been a number of high-profile cases where pupils have challenged a uniform on racial or religious grounds.
For example, it has been held by the courts that a prohibition on boys wearing their hair in “cornrows” was indirectly racially discriminatory. Similarly, not allowing a Sikh girl to wear a Kara bangle was found to be a form of indirect religious discrimination.
In order to succeed in such a claim, the pupil must have a reasonable and genuine belief that the item they wished to wear was of “exceptional importance” to his or her race or religious belief and this must be capable of objective verification to some extent.
However, it is possible for a school to defend a claim of this type if it can show that its actions were a proportionate means of achieving a legitimate aim. For example, by refusing to allow a particular item to be worn on legitimate health and safety grounds.
It should be noted, however, that pupils can also, in some circumstances, bring claims under the Human Rights Act, usually relying on the right to manifest one’s religious beliefs under Article 9.
Conduct of parents
Pupils in schools are also protected from victimisation where a parent or sibling has done a “protected act” under the Equality Act, for example submitting a complaint that their child is being discriminated against by the school.
However, the pupil will not be protected where he or she acted in “bad faith”. Interestingly, however, the pupil will still be protected where the parent or sibling acted maliciously or made a false allegation, but the child himself acted in good faith.
Individual pupils can bring proceedings against their school in the county courts for alleged contraventions of the equality provisions. Such claims must usually be submitted within six months of the date of the act complained of.
The country courts have the power to award declarations, injunctions and damages to the pupil (including for injury to feelings). In addition, the Equality and Human Rights Commission can also take its own independent action against schools that it suspects of committing an unlawful act and can serve its own notices on the school or apply to the courts for further action to be taken. Breaches of the equality provisions can therefore result in significant consequences for schools.
Amanda Lyons is an associate with DMH Stallard LLP.