Dealing with disability in the Education sector

Mary Siddall, Springhouse solicitors

Public Sector Equality Duty

• 3 aims:• To eliminate discrimination, harassment and

victimisation• To advance equality of opportunity between

people of different groups• To foster good relations between people of

different groups

Statistics

• 2010/11 proportion of disabled staff was 3.2% (based on self-declaration); up 1% from 2003/4

• .2 of all staff disclosed a mental health condition (1 in 4 of general population will experience mental illness at some point)

• Number of students declaring a disability increased from 5.5% to 7.6% (55% a specific learning disability)

Definition of Disability

• A physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities

How has the definition changed?

• Diagnosis of cancer or HIV qualifies as a disability even if symptomless

• Mental impairment no longer has to stem from recognised mental illness

• List of ‘normal day to day activities’ has now been removed

What acts are unlawful?

• Direct discrimination (requires a comparator)• Discrimination ‘arising from disability’ (unless

a proportionate means of achieving a legitimate aim)

• Indirect discrimination• Duty to make reasonable adjustments• Harassment • Victimisation

Other protected persons

• Associative discrimination

• Perception discrimination

Pre-recruitment health screening

• Employer can not ask about the health of a person:

• Before offering them a job or• Before including them in a pool of applicants

from whom the employer intends to offer work

• But an offer may be made on a conditional basis

Exceptions to health questions

• Asking whether applicant needs reasonable adjustments as part of the application process

• Asking whether applicant can carry out a function ‘intrinsic to the job’.

• Monitoring diversity• Requirement to have a particular disability

Case Studies

• The University of Life is advertising a role in its busy communications team. Alan, who has a history of anxiety and depression, puts in an application. He is shortlisted, but then receives a questionnaire asking:

• ‘This is a high pressure role involving tight deadlines and late nights. Please inform us if you have ever experienced difficulty in coping with stressful situations’. Has Alan been discriminated against?

• Mark is an experienced lecturer and programme leader who gets on well with his team and is well liked by students. His teaching assessments always rate him very highly and he hopes to apply for promotion.

• One day when Mark is cycling to work he is hit by a van and suffers a head injury. He is off work for 3 months. Finally the University receives a ‘fit note’ stating that he is well enough to return but requesting a long list of reasonable adjustments. This includes a request for:

• All management meetings to be recorded as Mark is suffering from short term memory loss

• Specialist computer equipment and a Dictaphone• Time off to attend rehabilitation appointments• A reduction in workload• A ‘mentor’ to assist Mark with the process of re-integrating back into work• Special blinds for his office as he is now affected by light

• The University is concerned about some of these adjustments and does not permit Mark to return, suspending him on sick pay while discussions continue. Eventually an agreement is reached and Mark returns, initially on a part-time basis.

• Unfortunately things do not go well. Mark has suffered personality changes following his accident and his relations with colleagues and managers start to deteriorate. Mark can be rude and abrupt at times. His manager tries to address the issues with him but Mark gets very upset and starts to insist that he will only attend meetings if his Mentor is present.

• Students start to complain about Mark and some of the things he has said to them in lectures which they find bizarre, for example statements that they are being spied on and recorded by the Government at all times.

• One day Mark shouts at a colleague who had been trying to discuss a programme issue with him. As a result the colleague raises a grievance. As a temporary resolution of the situation, Mark is removed as programme leader and some of his teaching duties are taken away from him.

• Mark resigns and claims constructive dismissal and disability discrimination.