The law supporting inclusive education in the UK

Legislation in the UK prohibits discrimination in education and supports inclusive education. The UK also has obligations under international human rights law to provide inclusive education for all children.

Education without discrimination in UK law

It is unlawful for any education provider, including a private or independent provider, to discriminate between pupils on grounds of ethnicity, sex, disability, sexual orientation, gender reassignment, pregnancy and maternity, and religion or belief in admissions, access to benefits or services, exclusions, and in the employment of staff.

There are some exceptions with regard to age, religion and gender (for example to allow for the maintenance of faith schools and single-sex schools); some disabled pupils and pupils with an Education, Health and Care Plan may be segregated in special schools, and schools may temporarily or permanently exclude pupils for disciplinary reasons.

Equality Act: 2010

Under the Equality Act 2010, it is unlawful for any education provider, including a private or independent provider, to discriminate between pupils on grounds of disability, ethnicity, sex, gender reassignment, pregnancy and maternity, religion or belief, or sex. Discrimination on these grounds (known as “protected characteristics”) is unlawful in relation to prospective pupils (admissions arrangements), pupils at the school including absent or temporarily excluded pupils, and former pupils who have a continuing relationship with the school.

Prohibition of discrimination

The Act defines discrimination in four ways:

1. Direct discrimination

occurs when a pupil is treated less favourably than another pupil because of a protected characteristic. It is always unlawful, with certain exceptions, e.g. with regard to single-sex schools. The law also prohibits

  • direct discrimination by association, when a pupil is treated less favourably because of their association with another person who has a protected characteristic (but this does not apply to pregnancy and maternity, see below).
  • direct discrimination based on perception, when a pupil is treated less favourably because of being mistakenly seen as having a protected characteristic
  • discrimination because of pregnancy and maternity, where a female pupil is treated less favourably because she is or has been pregnant or has given birth in the last 26 weeks or is breastfeeding a baby under 26 weeks old (if the baby is older than 26 weeks, unfavourable treatment would be classed as direct sex discrimination)

2. Indirect discrimination

occurs when treating all pupils in the same way results in putting pupils with a protected characteristic at a disadvantage. It depends on the following conditions being met:

  • a provision, criterion or practice is applied equally to all relevant pupils, including those with a protected characteristic, and
  • the provision, criterion or practice puts pupils sharing a protected characteristic at a disadvantage compared to other relevant pupils, and
  • the provision, criterion, practice or rule puts the particular pupil concerned at a disadvantage, and
  • the school cannot demonstrate that the provision, criteria or practice is justified as a “proportionate means of achieving a legitimate aim”.

3. Discrimination arising from disability

occurs when a disabled pupil is treated unfavourably because of something related to their disability (as distinct from being because of the disability itself, which would be direct discrimination as above) and such treatment cannot be justified. The following conditions must be met:

  • the disabled pupil is treated in a way which puts him/her at a disadvantage
  • the treatment is connected with the pupil’s disability
  • the treatment cannot be justified as “a proportionate means of achieving a legitimate aim”

4. Failure to make reasonable adjustments for disabled people

There has been a duty on responsible bodies of schools to make reasonable adjustments for disabled pupils and prospective pupils since 1995. The new Act extends the duty so that a school must also provide auxiliary aids and services, but as at November 2010 this element is yet to come into force.

The Act states that the responsible body of a school must not discriminate against a person in its admission arrangements, in the provision of education, in exclusions or by subjecting the pupil to any other detriment.

Harassment

The Act prohibits harassment of three types:

1. Harassment related to a relevant protected characteristic

is unwanted behaviour related to a protected characteristic (for schools, disability, ethnicity and sex) and which has the purpose or effect of violating a pupil’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the pupil

2. Sexual harassment

is unwanted behaviour which is of a sexual nature and which has the purpose or effect of violating a pupil’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the pupil

3. less favourable treatment of a pupil

because they submit to or reject sexual harassment or harassment related to sex.

Victimisation

The Act prohibits victimisation, defined as treating a pupil badly because they (or their parent or sibling) has done a “protected act” (or because the school believes that a person has done or is going to do a protected act). A protected act is:

  • making a claim or complaint of discrimination under the Act.
  • giving evidence or information to support another person’s claim under the Act.
  • alleging that the school or someone else has breached the Act.
  • doing anything else in connection with the Act.

The Act states that a school must not victimise a person in its admission arrangements, the provision of education, in exclusions or by subjecting the pupil to any other detriment.

Further information on the implications of the Equality Act 2010 for schools can be found in What equality law means for you as an education provider: schools, published by the Equality and Human Rights Commission, together with up to date information on the Commission’s website. See also the full text of the Act and the explanatory notes.

Children and Families Act 2014

The Children and Families Act became law in April 2014. Its aim is to give better protection to children and families, especially those who are thought to be vulnerable.

The Act introduced:

  • More protection for children in care and those who need adoption.
  • Better support for children with labels of special educational needs and disabilities (SEND).
  • Extra help for children whose parents are separating.
  • New rights to help parents balance work and family life.

Key changes for children and young people:

  • Children in care can now stay with their foster families until age 21, if they choose.
  • Schools must give better support to pupils with medical needs.
  • Rights to support for young carers and parent carers are now clearer.
  • Children’s homes must meet higher standards to make sure they are safe and give good quality care.
  • All state-funded schools must provide free school meals for children in Reception, Year 1, and Year 2.
  • Smoking in cars with children is now banned.

Changes for parents and families:

  • From April 2015, mothers, fathers and adopters can share parental leave in the child’s first year. Parents can take turns or take time off together.
  • Since October 2014, fathers or partners can take time off to attend up to two antenatal appointments.
  • Adoptive parents now get the same leave and pay rights as birth parents, including enhanced pay for the first 6 weeks and time off for introductory meetings. This also applies to people using surrogacy or “foster to adopt” arrangements.
  • Since June 2014, all employees have the right to request flexible working. Employers must deal with requests in a “reasonable” way.

Section 3: Special Educational Needs and Disabilities (SEND)

Part 3 of the Act focuses on issues of SEND. It came into effect in September 2014.

It builds on earlier government papers and is supported by the SEND Code of Practice. This Code adds flesh to the bones of the Act and explains how the law should be put into practice and gives guidance on what schools and councils must do when children and young people need extra help.

It is important to remember that the Code of Practice states that it focuses on inclusive practice and removing barriers to learning. It says:

“As part of its commitments under articles 7 and 24 of the United Nations Convention of the Rights of Persons with Disabilities, the UK Government is committed to inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education. The Children and Families Act 2014 secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated and the Equality Act 2010 provides protection from discrimination for disabled people.”