This is where a pupil is treated worse that others because of a protected ground (except disability. See Disability and discrimination).
- You allow girls to study the subject of home economics but boys at the school are not permitted to take this subject. Such treatment is likely to amount to direct discrimination because of sex.
- A teacher forces pupils who are the children of migrant workers and who do not have English as a first language to sit at the back of the class away from the rest of the pupils; ie, they are segregated from the local pupils. This is likely to be unlawful racial discrimination, even if the teacher believes that she is acting with good motives. Under the Race Relations (NI) Order segregation on racial grounds is deemed to be an act of direct race discrimination.
Unfortunately there is not a single definition of indirect discrimination that applies across all of the discrimination laws so this makes it a little complicated to explain the concept. However a reasonable description of the concept and what it tries to do is as follows:
Indirect discrimination is where an organisation unjustifiably operates a rule or policy that looks the same for everyone but in effect disadvantages people from a particular protected group.
- You give preference to a child whose parent has in the past attended the school. While this criterion is applied equally to all potential pupils, it could put the children of Irish Travellers or migrant workers at a disadvantage because they are less likely than local people to be able to meet it. The criterion is, therefore, potentially indirectly discriminatory on grounds of race and will be unlawful unless it can be objectively justified.
- You do not permit boys or girls to wear headgear as part of your uniform policy and this policy applies to every pupil equally. However, many of the school’s pupils are Muslim girls and this rule places them at a disadvantage because their religion requires them to wear head covering. The rule does not cause a similar disadvantage for pupils who have no religion, or who have other religions that do not require them to wear head coverings.
At first sight this looks like a case of indirect religious discrimination, but that is not a form of discrimination that the pupils can complain about. However, the Muslim pupils are also likely to be from particular racial groups due to Islam’s close association with particular geographical regions, ie, North Africa, the Middle East and South Asia. They may alternatively be able to bring a complaint of indirect race discrimination about the policy and, if they can, the policy will have to be objectively justified.
Victimisation is where a pupil has made a complaint of discrimination, in good faith or helped someone else with a complaint under the discrimination laws, and suffered as a result. Protection from victimisation is intended to ensure that people are not put off from complaining about discrimination out of fear of further adverse treatment.
- A Muslim pupil had made a complaint of indirect racial discrimination because she was not allowed to wear a head scarf to school. At the beginning of the new school year she requested to do an extra “GCSE” but you refused permission.
If the reason for the refusal was that you were retaliating against her because she had brought a complaint of discrimination in the previous year, it would be victimisation and would be unlawful.
Disability-related discrimination is essentially a form of direct discrimination. It is very closely linked with the duty to make reasonable adjustments. Disability-related discrimination is much less likely to occur when the reasonable adjustment duty has been complied with. So, the focus and priority for you should be on complying with the reasonable adjustment duty.
What is the reasonable adjustment duty for disabled people?
In certain circumstances SENDO places a duty on you to make reasonable adjustments for those students or prospective students who are disabled.
The duty arises where:
- a provision, criterion or practice is applied by or on behalf of a school/college; or
- any physical feature of premises occupied by a school/college;
- places disabled students at a substantial disadvantage in comparison with students who are not disabled.
There are a number of things you need to remember about reasonable adjustments:
a. where the duty arises, you cannot justify a failure to make a reasonable adjustment.
b. reasonable adjustments have to be considered at every stage of the students journey through their education.
c. the duty is ‘reactive’ and requires you to have knowledge of the person’s disability and the fact that they will be placed at a substantial disadvantage compared to others who do not have the particular disability.
- You introduce a website to enable the pupils to keep in touch and up to date on news, events and the latest school activities. However, the website has embedded all of its text within graphics. This practice places pupils who have visual impairments at a particular disadvantage because they cannot change the font size or apply text-to-speech recognition software. Hence they cannot access the website.
If it is reasonable for you to change the website to remove the cause of this difficulty and to enable disabled pupils to use it, then you will be under a duty to make these changes. An unjustified failure to do so would be unlawful discrimination.
When do we not have to make reasonable adjustments for pupils?
- A femal pupil who has Osteogenesis Imperfecta (brittle bones) and walks using a rollator wants to attend your mainstream primary school. The school’s buildings have narrow walkways. For her own safety, her parents ask if she could leave class five minutes before the end of lessons in order to miss the rush in the corridors. You assess the request and decide that it would be reasonable for you to timetable classes, breaks and meal times to ensure that the girl is able to avoid crowded corridors. You also create a separate safe environment for her to mix with her peers during lunch and other breaks.
There are circumstances where the duty to make reasonable adjustments does not apply.
The duty does not arise where a disabled pupil needs:
- changes to the physical features of premises, for example, the building of a ramp or installation of a lift;
- to be provided with auxiliary aids and services, for example, a special piece of equipment or a sign language interpreter.
While SENDO does not require these particular adjustments to be made, it may still be possible to obtain them through other means, for example, auxiliary aids and services for disabled pupils or perspective pupils may be available through the Special Educational Needs (SEN) framework. SEN is funded by the Department of Education and the Education and Library Boards.
There is also a duty for schools to work towards making the education experience more accessible to disabled pupils and prospective pupils in terms of premises, the curriculum and information. To assist with this particular duty the Department of Education and Education and Library Boards must produce accessibility strategies and plans.
- You decide to make it easier for pupils with visual impairments to find their way around the building. You therefore include in your accessibility plan that when you are repainting the school in the next two years you will use suitable contrasting colours.
This will help visually impaired pupils to get round the school.
What is harassment and bullying in schools?
Harassment and bullying are terms used to explain certain types of unacceptable behaviour that pupils may sometimes be subjected to, for example, where another pupil or group of pupils:
- say mean and hurtful things or make fun of them or call them mean and hurtful names
- completely ignore or leave them out from their group of friends or leave them out of things on purpose
- hit, kick, push, shove around, or lock them inside a room
- tell lies or spread false rumours about them or send mean notes and try to make other pupils dislike them
- and other hurtful things like that.
What are the legal remedies available for bullying or harassment?
The legal remedies that are available to pupils who have been subjected to harassment and bullying will depend on a number of factors.
If the harassment or bullying relates to a protected ground, ie, sex, race, sexual orientation or disability, then a pupil may have a remedy under the discrimination laws for example, if the harassing or bullying treatment was carried out by one of your employees, such as a teacher, caretaker or kitchen assistant. In general you have legal duties to pupils in relation to bullying.
You must also ensure that you treat bullying on grounds of sexual orientation, race, sex or disability as serious as other forms of bullying.
Where the pupils do not have remedies under discrimination laws, they may still have legal redress under the Education (NI) Order 1998, the Education and Libraries (NI) Order 2003 and the Education and Libraries (Northern Ireland) Order 1986. Taken together, all of these laws impose a duty on you to protect pupils from harassment and bullying in all its forms.