6.17 Reasons, such as health and safety implications, may appear to be ‘material’ and ‘substantial’ reasons which are capable of justifying the disability-related discrimination. However, assumptions about the health and safety
implications of disability should be avoided as further investigation may show that there are no material or substantial health and safety reasons to justify the treatment. The fact that a person has a disability does not necessarily mean that he represents an additional risk to health and safety.
A person with epilepsy applies for a catering course at his local further education college. He provides information from his GP that he has regular seizures. The college refuses to accept him on the course as they are concerned that he will have a seizure during a practical session and injure himself. In fact, the student is always
aware when a seizure is imminent and goes to a safe environment. If the college had investigated the implications of his disability further it would have been apparent that there was no real health and safety risk.
6.18 Genuine concerns about the health and safety of anybody (including a disabled person) may be relevant when seeking to establish that disability- related less favourable treatment of a disabled person is justified. Conducting a risk assessment is often necessary to show whether or not there are any genuine health and safety issues. It is prudent for an education provider to have a risk assessment carried out by a suitably qualified
give rise to an issue about health and safety. An education provider which treats a disabled person less favourably without having a suitable and sufficient risk assessment carried out is unlikely to be able to show that its concerns about health and safety justify the less favourable treatment.
6.19 Nevertheless, an education provider should not subject a disabled person to a risk assessment if this is not merited by the particular circumstances of the case.
A man with diabetes applies for a distance learning MBA that occasionally involves
residential sessions at the university. The man’s condition is stable and he has successfully
managed it for many years. He provides medical evidence from his GP to confirm this.
Nevertheless, the university says that it has concerns about health and safety during the residential elements of the course and that they want to undertake a risk assessment. This is likely to be unlawful, as the circumstances of the case do not indicate that there would be any health and safety risk.
6.20 A risk assessment must be suitable and sufficient. It should identify the risks associated with a
particular activity; taking account of any reasonable adjustments put in place for the disabled person, and should be specific for the individual carrying out a particular task. It is therefore unlikely that an education provider
which has a general policy of treating people with certain disabilities (such as epilepsy, diabetes or mental health problems) less favourably than other people will be able to justify doing so – even if that policy is in accordance with the advice of an occupational health adviser.
6.21 A ‘blanket’ policy of this nature will usually be unlawful as it cannot be material to the facts of the individual case. This is because it is likely to
amount to direct discrimination (which cannot ever be justified) or to disability-related
discrimination which is not justifiable in the circumstances.
6.22 Reasonable adjustments made by an education provider may remove or reduce health and safety risks related to a person’s disability and therefore remove the material and substantial reason which would otherwise make the disability-related
discrimination lawful. A suitable and sufficient assessment of such risks therefore needs to take account of the impact which making any
reasonable adjustments would have. If a risk assessment is not conducted on this basis, then an education provider is unlikely to be able to show that its concerns about health and safety justify less favourable treatment of the disabled person.
6.23 In addition, where medical information is
available, education providers must weigh it up in the context of the actual situation, and the
capabilities of the individual. An education
provider should also consider whether reasonable adjustments could be made in order to overcome any problems which may have been identified as a result of the medical information. It should not be taken for granted that the person who provides the medical information will be aware that
education providers have a duty to make
reasonable adjustments, what these adjustments might be, or of the particular circumstances. It is good practice, therefore, to ensure that medical advisers are made aware of these matters.
only be relied on if the adviser has the appropriate knowledge and expertise.
An agricultural college offers a practical course in tree surgery. A medical questionnaire shows that an applicant has a medical condition which might mean that it is unsafe for him to do the course. Because of this, further medical evidence is obtained and a risk assessment conducted and this confirms that he would not be able to
complete many elements of the course. It is likely to be lawful to reject this applicant if in fact it is necessary for him to complete all the elements of the course and if there are no reasonable
adjustments that could be made.
A university receives advice from an
occupational health adviser stating simply that an applicant for a teaching course is ‘not fit to teach’. The university should ask for further information on why this decision has been reached so that the university can make its own decision and if necessary consider whether there are reasonable adjustments which should be made in order for the applicant to meet the ‘fitness criteria’.
What is a competence standard?
6.24 The Act defines a ‘competence standard’ as an academic, medical, or other standard applied by or on behalf of an education provider for the purpose of determining whether or not a person has a particular level of competence or ability.
s 28S(11)