The document discusses disability in the education sector and the public sector equality duty to eliminate discrimination and advance equality of opportunity. It provides statistics showing an increase in the proportion of disabled staff and students declaring disabilities. The definition of disability has expanded to include conditions like cancer or HIV even without symptoms, and mental impairments no longer need to stem from a recognized illness. Unlawful acts include direct and indirect discrimination, failure to provide reasonable adjustments, harassment, and victimization. Employers cannot ask health questions before making a job offer but can ask about adjustments and intrinsic job functions. Two case studies examine potential discrimination in questioning a candidate about coping with stress and accommodation issues for an employee who returned to work after a head injury.

1. Dealing with disability in the
Education sector
Mary Siddall, Springhouse solicitors

2. Public Sector Equality Duty
• 3 aims:
• To eliminate discrimination, harassment and
victimisation
• To advance equality of opportunity between
people of different groups
• To foster good relations between people of
different groups

3. Statistics
• 2010/11 proportion of disabled staff was 3.2%
(based on self-declaration); up 1% from
2003/4
• .2 of all staff disclosed a mental health
condition (1 in 4 of general population will
experience mental illness at some point)
• Number of students declaring a disability
increased from 5.5% to 7.6% (55% a specific
learning disability)

4. Definition of Disability
• A physical or mental impairment which has a
substantial and long-term adverse effect on
the ability to carry out normal day to day
activities

5. How has the definition changed?
• Diagnosis of cancer or HIV qualifies as a
disability even if symptomless
• Mental impairment no longer has to stem
from recognised mental illness
• List of ‘normal day to day activities’ has now
been removed

6. What acts are unlawful?
• Direct discrimination (requires a comparator)
• Discrimination ‘arising from disability’ (unless
a proportionate means of achieving a
legitimate aim)
• Indirect discrimination
• Duty to make reasonable adjustments
• Harassment
• Victimisation

7. Other protected persons
• Associative discrimination
• Perception discrimination

8. Pre-recruitment health screening
• Employer can not ask about the health of a
person:
• Before offering them a job or
• Before including them in a pool of applicants
from whom the employer intends to offer
work
• But an offer may be made on a conditional
basis

9. Exceptions to health questions
• Asking whether applicant needs reasonable
adjustments as part of the application process
• Asking whether applicant can carry out a
function ‘intrinsic to the job’.
• Monitoring diversity
• Requirement to have a particular disability

10. Case Studies
• The University of Life is advertising a role in its
busy communications team. Alan, who has a
history of anxiety and depression, puts in an
application. He is shortlisted, but then receives a
questionnaire asking:
• ‘This is a high pressure role involving tight
deadlines and late nights. Please inform us if you
have ever experienced difficulty in coping with
stressful situations’. Has Alan been discriminated
against?

11. • Mark is an experienced lecturer and programme leader who gets on well
with his team and is well liked by students. His teaching assessments
always rate him very highly and he hopes to apply for promotion.
• One day when Mark is cycling to work he is hit by a van and suffers a head
injury. He is off work for 3 months. Finally the University receives a ‘fit
note’ stating that he is well enough to return but requesting a long list of
reasonable adjustments. This includes a request for:
• All management meetings to be recorded as Mark is suffering from short
term memory loss
• Specialist computer equipment and a Dictaphone
• Time off to attend rehabilitation appointments
• A reduction in workload
• A ‘mentor’ to assist Mark with the process of re-integrating back into work
• Special blinds for his office as he is now affected by light

12. •
•
•
•
•
The University is concerned about some of these adjustments and does not permit
Mark to return, suspending him on sick pay while discussions continue. Eventually
an agreement is reached and Mark returns, initially on a part-time basis.
Unfortunately things do not go well. Mark has suffered personality changes
following his accident and his relations with colleagues and managers start to
deteriorate. Mark can be rude and abrupt at times. His manager tries to address
the issues with him but Mark gets very upset and starts to insist that he will only
attend meetings if his Mentor is present.
Students start to complain about Mark and some of the things he has said to them
in lectures which they find bizarre, for example statements that they are being
spied on and recorded by the Government at all times.
One day Mark shouts at a colleague who had been trying to discuss a programme
issue with him. As a result the colleague raises a grievance. As a temporary
resolution of the situation, Mark is removed as programme leader and some of his
teaching duties are taken away from him.
Mark resigns and claims constructive dismissal and disability discrimination.