s15(1) (a) Unfavourable treatment 5.44
For discrimination arising from disability to occur, a disabled pupil must have been treated ‘unfavourably’. This means that he or she must be put at a disadvantage (seeparagraph 5.21). Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable, for example being excluded from the school. Being denied a choice or excluded from an opportunity is also likely to be unfavourable treatment. Sometimes, the unfavourable treatment may be less obvious. Even if a school thinks that it is acting in the best interests of a disabled pupil, it may still be treating that pupil unfavourably.
5.45
The unfavourable treatment must be because of something that arises as a consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability. 5.46
The consequences of a disability include anything that is the result, effect or outcome of a disabled pupil’s disability. The consequences will be varied and will depend on the individual effect upon a disabled pupil of his or her
disability. Some consequences may be obvious, such as an inability to walk unaided. Others may not be obvious, such as an inability to concentrate for long periods of time, or the need for regular rest breaks or toilet breaks, or the need for instructions to be repeated or presented in visual form.
5.47
As long as the unfavourable treatment is because of something arising as a consequence of the disability, it will be unlawful unless it can be objectively justified, or unless the school did not know, or could not reasonably have been expected to know, that the pupil was disabled.
Example: A pupil with learning difficulties is not allowed to have a school meal because she has become agitated and upset whilst queuing on a number of occasions. She is asked instead to bring in a packed lunch and to eat it separately, away from her friends. Her behaviour in the queue is a result of her learning difficulties. The refusal to allow the pupil to have a school meal is unfavourable treatment that is because of
5.48
Unfavourable treatment will not amount to discrimination arising from disability if the school can show that the treatment is a ‘proportionate means of achieving a legitimate aim’. This ‘objective justification’ test is explained in detail in paragraph 5.32in relation to indirect discrimination.
5.49
It is for the school to justify the treatment. It must produce evidence to support its assertion that it is justified and not rely on mere generalisations.
Knowledge of disability 5.50
In addition, if a school can show that it
• did not know that the disabled pupil had the disability in question, and • could not reasonably have been expected to know that the disabled pupil
had the disability,
then the unfavourable treatment would not amount to unlawful discrimination arising from disability.
5.51
If the school’s agent (that is, someone who undertakes tasks on the school’s behalf) or employee knows of a pupil’s disability, the school will not usually be able to claim that it does not know of the disability.
Example: A school refuses to allow a pupil with a colostomy bag to take part in swimming lessons, because it assumes that the colostomy bag presents a health and safety risk. Because the reason for the treatment is based on general assumptions rather than a specific risk assessment, the school is unlikely to be able to justify the treatment.
Example: A pupil tells the school secretary that she has diabetes and that she needs to carry biscuits to eat when her blood sugar levels fall. A teacher has no information about her disability and refuses to allow the pupil to bring food into the classroom. When the teacher sees the pupil eating, he disciplines her. In this case, the school is unlikely to be able to argue that it did not know about her condition.
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Key concepts
s15(2)
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Key concepts
s26 5.52
A school must do all it that can reasonably be expected to do to find out whether a pupil has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, schools should consider issues of dignity and privacy, and ensure that personal information is dealt with confidentially.
Relevance of reasonable adjustments 5.53
By acting quickly to identify and put in place reasonable adjustments for disabled pupils, a school can often avoid discrimination arising from
disability, although there may be cases in which an adjustment is unrelated to the unfavourable treatment in question.
5.54
If a school fails to make an appropriate reasonable adjustment, it is likely to be very difficult for it to argue that unfavourable treatment is justified. Reasonable adjustments are explained in detail in Chapter 6.