Sunday, 3 July 2011

The Equality Act 2010 Part Two

Overview of the Equality Act

The Act applies to all maintained and independent schools in England and Wales, including academies, as well as to maintained and non-maintained special schools. In Scotland it applies to schools managed by education authorities, independent schools and schools receiving grants under section 73(c) or (d) of the Education (Scotland) Act. The legislation makes it unlawful for the responsible body of a school to discriminate against, harass or victimise a pupil or potential pupil:

in relation to admissions

in the way it provides education for pupils

in the way it provides pupils access to any benefit, facility or service

by excluding a pupil or subjecting them to any other detriment.

The law sets out a number of ‘protected characteristics', which define the categories to which it applies. These make it unlawful for a school to discriminate against a pupil or prospective pupil by treating them less favourably because of their:




religion or belief

sexual orientation

gender reassignment

pregnancy or maternity.

Four kinds of unlawful behaviour are defined:

Direct discrimination

The most obvious form of discrimination, this occurs when, because of a protected characteristic, one person treats another less favourably than they treat (or would treat) other people.

Indirect discrimination

This occurs when a ‘provision, criterion or practice' is applied generally but has the effect of putting people with a particular characteristic at a disadvantage when compared to people without that characteristic. An example is given of holding a parents' meeting on a Friday evening, which could make it difficult for observant Jewish parents to attend. There can be a defence against a claim of indirect discrimination if it can be shown that the reason for the rule or practice is legitimate and that it could not reasonably be achieved in a different way which did not discriminate.


The Act defines harassment as ‘unwanted conduct, related to a relevant protected characteristic, which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person'.

In schools, the offence applies only to harassment because of disability, race, sex or pregnancy and maternity, and not to religion or belief, sexual orientation or gender reassignment. However, harassing a pupil on the latter grounds would be likely to lead to a case of direct discrimination.


This occurs when a person is treated less favourably than they otherwise would have been because of something they have done (a "protected act") in connection with the Act. It is designed to ensure that people are not deterred from raising genuine concerns about discrimination because of the fear of retaliation. If a parent has raised such a concern it is also unlawful to victimise their child. The same applies if it is a sibling who has made the complaint.

These general principles are subject to a range of general exceptions and special issues. See more detailed guidance.

Guidance on the Equality Duty and implementing it is still awaited. The Equality Duty requires public bodies to have due regard to the need to:

eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act

advance equality of opportunity between people who share a protected characteristic and people who do not share it foster good relations between people who share a protected characteristic and people who do not share it.

It is expected that public bodies will have to do far less than before to demonstrate how they are meeting these three aims. Although public bodies, including schools, are expected to have to continue to publish information to demonstrate their compliance with the Equality Duty annually, the draft regulations removed the obligation to publish evidence of the analysis undertaken by a public body to establish whether its policies and practices had furthered the aims. It also altered the requirement to ‘publish sufficient information' to demonstrate compliance merely to ‘publish information'.

Public bodies are likely to have to publish their equality objectives every four years.

The latest information for schools on the Equality Act 2010 is available from the DfE website.

Written by: David Gordon

About the author

David Gordon is an author, writer, editor and qualified lecturer and has also been a parent governor. He has been the editor of School Governor Update since its launch in 2000.

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