All nurseries are experiencing an increased number of SEND and differently-abled children already attending and also applying for places in mainstream settings. We therefore, decided to speak with our friends at Stephensons Solicitors to give some insight into the potential risk around disability discrimination law. Do you and your team know enough about disability discrimination to ensure you are on the right side of the legislation when making decisions about children in your care?
What is Discrimination?
Discrimination is the unequal treatment of an individual or individuals on the grounds of one or more of the protected characteristics as defined by the Equality Act 2010.
The protected characteristics are:
- Age
- Gender
- Race
- Sexual orientation
- Marital status
- Pregnancy or maternity
- Gender reassignment
- Religious beliefs and;
- Disability
Individuals are protected against treatment, which can be linked to one of the above characteristics and causes harm to them in comparison to others.
Allegations of discrimination can stem from an individual feeling that they have been treated unfavourably directly because of their protected characteristic. This could also relate to a parent who feels their child is being discriminated This is direct discrimination.
If direct discrimination can be proven, then this can also justify claims of harassment under the act.
Individuals can also claim indirect discrimination. Indirect discrimination occurs when something such as a policy or practice applies to everyone in the same way, but affects some people unfairly. For example, if everyone had to climb up a flight of stairs to get to an after-school club, this would potentially discriminate against children who couldn’t do that because of disability.
Reasonable Adjustments
To combat the disadvantages to individuals that are in place, nurseries can be asked to make reasonable adjustments to ensure all children are treated the same. Reasonable adjustments come in all kinds of shapes and sizes, depending on a child’s needs. They include making changes to things like uniform and behaviour policy to meet the needs of a child, making changes to the building (access ramps etc.) as well as the kind of support offered day-to-day in the nursery.
It is good practice to involve parents and children themselves in planning reasonable adjustments. They are often best placed to help nurseries think about what disadvantages might arise and what reasonable adjustments may work best. Communication is key and nurseries can often avoid discrimination arising as a consequence of a disability by thinking ahead and making reasonable adjustments early.
However, it is important to remember that the adjustments requested must be reasonable. You may be concerned that what is being asked of the setting cannot be accommodated when having conducted a balancing exercise between the disadvantage caused to the child in question and, for example, the resources available and/or the effects that the adjustment may have detrimentally upon others. If you are unclear then it is worth considering speaking with your insurance advisor who will be able to seek legal advice, if needed.
How to respond to a claim of potential disability discrimination
You will likely be first notified of a potential discrimination claim by way of a formal complaint. It is important that you immediately acknowledge the complaint and commence a thorough and detailed investigation of the matter. Taking urgent action, keeping the individual or family updated as to the progress of the investigation and providing a detailed response can lead to the swift resolution of the matter.
If you receive a notification of an escalated complaint from your regulator, it is again imperative that you acknowledge the complaint, thoroughly and formally investigate it and respond immediately.
Again it is worth updating your insurance advisor to seek support.
What to do if you get a legal Letter regarding disability discrimination?
If the individual intends to start legal proceedings, they are required by the courts to follow what is known as the pre-action protocol. This requires the claimant to send a detailed letter setting out the acts of alleged discrimination in full, the relevant applicable law and the remedies which they seek from you.
The protocol aims to allow the parties to resolve the issues involved without it becoming necessary for court proceedings to be issued. You should therefore be given a reasonable opportunity to respond to this letter. Claimants will usually request a substantive response to their proposed claims within 21 days. However, extensions of up to 90 days, to allow for a thorough investigation, (also giving you the time to seek specialist legal advice), can be agreed, in accordance with the protocol.
You must engage fully in the spirit of the protocol and its aim for resolution. If you fail to do so by providing a delayed response or failing to substantively respond to the allegations raised, it will likely mean that a court proceeding will follow.
Unsure what to do?
The Equality Act 2010 is an extremely complex piece of legislation. It is relatively new in its application and is relatively untested. It is therefore recommended that you seek the advice and assistance of a legal firm specialising in this niche area of the law immediately upon receipt of a complaint before action.
Future-Proof where you can
It is worth taking some time now to assess your current policies and procedures, are they inclusive? Could adjustments be made now to make them more inclusive to all current and future nursery children?
If you have any questions please don’t hesitate to get in touch for some advice and support.