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Discrimination
If you feel that you have suffered discrimination then you should seek advice from ATL. The matter should be raised with the school either by you, or by your union representative, as appropriate.
Hopefully, the problem will be resolved with your employer, either informally, or the through the grievance procedure. If not possible, then a case may need to be brought against the employer in an Employment Tribunal, within three months of the alleged act of discrimination. This page sets out information about discrimination legislation, notes on specific areas of law and information about race equality policies for schools.
What is discrimination?
Discrimination covers four areas:
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direct discrimination - treating someone less favourably because of their age, race, sexual preference, disability or belief
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indirect discrimination - applying practices that might favour one group over another, or applying requirements or conditions that a particular group are less likely to be able to comply with
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harassment - unwanted conduct that violates a person's dignity and creates a hostile, degrading, humiliating or offensive environment for that person
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victimisation - unfair treatment of an employee who has made a complaint about discrimination.
More information about the legislation that exists to protect you is set out below.
Legislation
The following laws have been passed prohibiting discrimination in the work place on the grounds of gender, race, sexual orientation, disability, religion or belief, and age:
The Sex Discrimination Act 1975
This prohibits discrimination on grounds of gender, and marital status in employment, education and the provision of goods and services and on grounds of gender reassignment in the field of employment. It applies in England, Scotland and Wales.
The Disability Discrimination Act 1995 (and 2005)
This act, as amended by the Special Educational Needs and Disability Act 2001, prohibits local authorities, schools, colleges, universities, providers of adult education and the youth service from discriminating against disabled people in their access to education for a reason that is related to their disability. It applies in England, Scotland, Wales and in relation to employment in Northern Ireland.
The Disability Discrimination Act 2005 places a general duty on public authorities to promote disability equality. It prohibits discrimination by these authorities against a disabled person in carrying out their public functions.
The Race Relations (Amendment) Act 2000
This prohibits discrimination on grounds of race, colour, nationality and ethnicity in employment, education and provision of goods and services. It applies in England, Scotland and Wales.
The Employment Equality Regulations 2003
These prohibit discrimination on grounds of sexual orientation or religion or belief in employment and vocational training. The regulations apply across England, Scotland and Wales, whatever the size of the organisation, whether in the public or the private sector.
The Employment Equality Regulations 2006
These prohibit unjustified direct and indirect age discrimination, and all harassment and victimisation on grounds of age. The regulations apply across England, Scotland and Wales, whatever the size of the organisation, whether in the public or the private sector.
The Equality Act 2006
This amended the Sex Discrimination Act to place a 'general duty' on all public authorities to promote gender equality with effect from 6 April 2007. It also makes a provision for most public authorities to carry out 'specific duties', too. The gender equality duty applies to students and pupils as well as employees.
Notes on the legislation
Age
The Employment Equality (Age) Regulations 2006:
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ban age discrimination in terms of recruitment, promotion and training
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ban unjustified retirement ages of below 65
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remove the current age limit for unfair dismissal and redundancy rights.
They also introduce a right for employees to request working beyond retirement age, and a new requirement for employers to give at least six months notice in writing to employees about their intended retirement date so that individuals can plan better for retirement. If the employee wishes to continue working, then s/he must submit a written request to continue working with details, at least three months before retirement.
Employers should review their policies on, for example: recruitment, pay and benefits, selection for redundancy and retirement, to ensure that they are either free from age discrimination or are permitted by one of the exceptions.
Disability
An employer may be discriminatory if it fails to make reasonable adjustments to its employment arrangements or to the physical features of its premises and this results in the disabled person being substantially disadvantaged.
It should never be assumed that the responsibility of schools and colleges to protect the health and safety of students will be compromised by the employment of disabled people.
Reasonable adjustments could include the provision of wheelchair accessible toilets, ramps and automatic opening doors, specialist equipment or adapted keyboards. They could also include altering duties, perhaps by replacing outdoor supervision duty with management tasks, or allowing a gradual return to work after a period of absence.
Changes to working arrangements to accommodate the needs of a disabled employee could include employing an assistant to undertake administrative tasks, allocating some duties to another employee or altering working hours to allow part-time work or job sharing.
Religion
The Employment Equality (Religion or Belief) Regulations 2003 serve to prohibit discrimination on the grounds of 'religion or belief'. It is also unlawful to discriminate against a person for not having a specific religion or belief.
The regulations provide for lawful discrimination when having a particular religion or belief is a genuine occupational requirement.
For example, a Catholic school may successfully argue that being Catholic is a 'genuine occupational requirement' for the position of religious education teacher at the school. However, genuine occupational reasons are always open to challenge from an employee and the burden will be on the employer to establish that the reason is a valid one, by substantiating this with evidence.
In accordance with the regulations, employers are required to ensure that none of their policies, rules and procedures indirectly discriminate against staff of a particular religion or belief.
This may involve, for example, considering requests for holidays on the days of religious festivals. However, the regulations do not impose an obligation on employers to provide time and facilities for religious belief observance at work.
Sexual orientation
The legislation covers gays, lesbians, heterosexuals and bisexuals but does not cover sexual practices, such as sado-masochism. Transgender people are protected by separate regulations. It also protects those who are subjected to discrimination based on association with, for example, gay friends or colleagues. The regulations prohibit direct and indirect discrimination as well as harassment.
However, if the employment is 'for the purposes of an organised religion' the employer may legitimately apply a requirement as to sexual orientation either to comply with the 'doctrines of the religion' or because of the nature and content of the employment, so as 'to avoid conflicting with the strongly-held religious conviction of a significant number of the religion's followers'.
There is a lack of clarity as to how wide-ranging this defence is. While it will almost certainly cover employment in a church, temple or mosque, it is less clear whether it applies to posts in church schools and religious colleges. There is no necessity for the employer to show that this is proportionate. This was required by the EU Directive on which the regulations are based and a consortium of TUC unions is challenging the government on this.
It is also important to note that, while it would be discriminatory for organisations to give benefits to opposite-sex unmarried partners but to deny those same benefits to same-sex partners, it is permissible for an employer to restrict those benefits to individuals who are married.
Race equality policies
Governing bodies of schools and institutions of further and higher education have a specific duty to prepare a race equality policy. Specific duties on employment do not apply directly to schools - the main responsibility for monitoring employment rests with LEAs.
Schools' governing bodies need to have a written policy statement for promoting racial equality. It should be linked to an action plan. This can be combined with another policy such as an equal opportunities policy, but the race equality policy should be clearly identifiable.
Governing bodies maintain the statement, fulfil the duties, and assess and monitor the impact of their policies (including the race equality policy) on pupils, staff and parents of different racial groups, including, in particular, the impact on such pupils' attainment.
Policy guidelines
A good policy will:
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set out the school's commitment to tackling racial discrimination and promoting equality of opportunity and good race relations, and explain what this means for everyone connected with the school
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give details of how the school will regularly monitor and assess the policy's effectiveness in practice (including a timetable for regular policy reviews)
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clearly define roles and responsibilities, so that people know what is expected of them; explain clearly what the school will do if the policy is not followed.
To assess the impact of policies, schools will need information by racial group on needs, entitlements and outcomes for pupils, parents and staff. The CRE suggests that schools should consider:
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collecting and analysing relevant monitoring and other data
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talking to pupils, staff and parents (Paragraph 6.16 says this also means the school should look at how it could communicate better and involve them in planning and decision making)
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carrying out surveys or special research.
Further education agreements
ATL and the national employers' body (the Association of Colleges) have agreed a number of national guideline agreements which establish recommended minimum standards for colleges and FE institutions in a number of areas related to discrimination and equality. They cover:
Need further advice?
Your first point of contact is your ATL rep in your school or college. Your local ATL branch is also available to help with queries, or you can contact ATL's member advisors on tel: 020 7930 6441 or email us. Please have your membership number to hand when telephoning and include it with any correspondence - this will help us to answer your query more quickly.