The content on this page is intended to provide a broad overview of current disability equality legislation and convey specific information about the provisions within the Equality Act (2010) and within formal guidance related to the higher education sector. It also provides guidance as to how both statutory and sector guidance can be implemented at the University of Cambridge. This information does not constitute legal advice.
If you are a University staff member and you have specific questions regarding disability and legal rights at work, please contact your HR Business Manager or the Equality and Diversity Team. The ADRC does not support disabled staff.
The sections below provide a brief overview of the statutory background to supporting disabled students and some useful links. Should you have further queries regarding Equalities legislation, disability and guidance for the Higher Education sector, you may also wish to arrange for a Disability Equality Training session which can be tailored to your specific needs.
The Equality Act (2010)
The Equality Act came into force on 1 October 2010. The Act aims to harmonise discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society. In relation to disability equality the Equality Act absorbed and supersedes the Disability Discrimination Act (1995, 2006), and The Special Educational Needs and Disability Act (2001).
The University's key responsibilities in relation to disability under the Equality Act are:
- A prohibition on discrimination arising from disability.
- A duty to make reasonable adjustments.
It should be noted that under the Equality Act (as with the previous legislation), it is permissible to treat a disabled person more favourably than a non-disabled person. For example, a disabled student may be eligible for extended library loans which are not available to non-disabled students.
Definition of disability under the Equality Act
The definition of disability under the Equality Act remains broadly the same as that under the Disability Discrimination Act (DDA). The Equality Act (2010) gives the definition of disability as follows:
A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities (Equality Act 2010, Section 6).
In the Act, a person has a disability if:
they have a physical or mental impairment (this includes specific learning difficulties such as dyslexia, and other conditions such as Asperger Syndrome as well as physical and sensory impairments)
long term in relation to the definition of disability means:
- it has lasted for at least 12 months,
- it is likely to last for at least 12 months, or
- it is likely to last for the rest of the life of the person
The Office for Disability Issues (ODI) has produced a useful guidance document related to the definition of disability:
Removing the list of capacities
Unlike the DDA, disabled people bringing a case under the Equality Act do not need to demonstrate how their impairment impacts on a specified list of day-to-day activities.
People who have had a disability within the meaning of the Act in the past are protected from discrimination even if they no longer have the disability. This includes impairments which have recurring or fluctuating effects, including mental health conditions such as depression, bipolar disorder and schizophrenia.
Reasonable Adjustments
The Equality Act continues the existing duty upon universities to make reasonable adjustments for staff, students and service users in relation to:
- a provision, criteria or practice (e.g. selection/admission process, exam access arrangements, marking criteria)
- physical features physical features (e.g. access to lecture theatres, laboratories, libraries)
- auxiliary aids (hearing loops, information in accessible formats or the provision of Non-Medical Assistance support — such as note-taking)
Education providers have a duty to make reasonable adjustments to ensure disabled people do not face 'substantial disadvantage' in comparison with non-disabled people. The duty remains anticipatory. This means that in addition to responding to the needs of individual disabled people as their requirements become apparent there is a need to build inclusion for disabled people into planning and review work and to deliver a certain level of accessibility in advance.
The provisions within the Equality Act strengthened the duty for Higher Education Institutions to make reasonable adjustments:
- Under the Equality Act 'substantial disadvantage' is defined as 'more than minor or trivial' and therefore the threshold has been lowered.
- It is nearly always a reasonable adjustment to provide information in an accessible or alternative format.
- The costs of reasonable adjustments cannot be passed onto the disabled person.
- If there is a physical barrier to access, organisations must remove, alter or provide a reasonable means of avoiding physical barriers to access.
Reasonable Adjustments to Academic Practices
Under the provisions of the Equality Act Reasonable adjustments must be made to existing academic practices or programmes in order to provide students with the opportunity to effectively demonstrate their abilities. Within teaching and learning the implementation of a reasonable adjustment aims to allow students to achieve their maximum potential but, in defining reasonableness, institutions are not required to compromise competence standards of the courses in question.
Within the Equality Act 'competence standards' are defined as the 'academic, medical or other standard(s) applied for the purpose of determining whether or not a person has a particular level of competence or ability'. A competence standard must not in itself be unlawfully discriminatory. It must therefore apply equally to all students, be genuinely relevant to the course, and be a proportionate means of achieving a legitimate aim.
How is reasonableness determined?
QAA guidance advises that, 'the application of an adjustment will result from consideration of the circumstances of the individual student and will involve the student in discussion of possible courses of action. What is "reasonable" for an institution will vary according to a range of factors and will depend on the circumstances of the individual case. Factors influencing the determination of what is reasonable will include the effectiveness of taking particular steps in enabling the student to overcome the relevant disadvantage, health and safety issues, the effect on other students and the financial cost to the institution' .
Examples
Some common reasonable adjustments:
- Handouts in advance in appropriate formats
- Extensions to library loans
- Recording of lectures
- Availability of electronic versions of materials
- Non-Medical Assistants (e.g. notetakers, mentors)
- Physical access/egress, seating/lighting
- Induction loops
- Examination access arrangements
- Timetable adjustments
A policy of rejecting all students with dyslexia from studying a particular subject is likely to be unlawful, as it does not allow consideration of level of dyslexia, individual ability or possible adjustments.
But less favourable treatment may be justified (and therefore lawful) if:
- It is necessary to maintain academic standards
- It is necessary to maintain other prescribed standards (dramatic or musical, for example)
- It is of a prescribed type or occurs in prescribed circumstances (in the case of some professional courses, including teaching and medicine)
- The reasons are both material to the circumstances of the particular case and substantial
To take the example above, it is possible that one or more of these could lawfully be applied in turning down an application from a disabled person with a particular impairment, but the individual case must be considered (see the last bullet point above).
Reasonable adjustments include the types of good practice which are outlined in the on-line materials which are available to University of Cambridge staff and provide a broad overview of teaching disabled students. For example, a lecturer who refuses to use a microphone to help a student with hearing impairment will probably be breaking the law. Examination allowances are another common example of a reasonable adjustment.
Discrimination
The Equality Act retained discrimination protections for disabled people and also introduced some new forms of discrimination. In relation to disability equality in education the key types of discrimination are:
Direct discrimination
This occurs when someone is treated less favourably than another on account of having a disability. When deciding whether direct discrimination has taken place a comparator is used.
Indirect discrimination
This is when a disabled person is disadvantaged by a 'provision, criterion or practice' which is broadly applied. These could be policies at work, College rules and qualifications.
Discrimination arising from a disability (NEW)
This is new provision and replaces 'disability related discrimination'. It is similar to indirect discrimination (above) but differs in two main aspects. Firstly there is no need to show group disadvantage that a 'policy, criterion or practice' would put others at a disadvantage. Secondly there is no need for a comparator. The only question is whether the particular person claiming discrimination is treated unfairly.
Discrimination by perception (NEW)
This is a new clause meaning that it is illegal for an employer/service/education provider to discriminate against someone they perceive to have a disability.
Discrimination by association (NEW)
Non-disabled people will be able to claim discrimination by association to someone with a protected characteristic.
The Quality Assurance Agency (QAA) Code of Practice
The QAA Code of practice for the assurance of academic quality and standards in higher education, Section 3: Disabled students was implemented from autumn 2000 and revised in 2010. The University and colleges are expected to meet its 24 'precepts' or standards that cover all areas of our relationship with students, including all aspects of teaching and learning. The Code expects us to treat disabled students as an integral part of the academic community and to provide for them as part of our core activities. The quality of what we do will be audited by the QAA which will use the Code as a benchmark. Many of the suggestions in this publication will help fulfil the requirements laid out in the precepts, but for full details see the complete Code of Practice.
The Equality and Human Rights Commission
The Equality and Human Rights Commission (EHRC) has a role in supporting people who have experienced discrimination and their contact details can be found under Further Reading and Information below. They have also produced additional guidance documents.