Background – The Equality Act 2010
The Equality Act 2010 legally protects people from discrimination, by ensuring that unfair treatment on the grounds of certain personal characteristics, such as disability, is against the law in almost all cases.
The protected characteristics are:
- gender reassignment
- being married or in a civil partnership
- being pregnant or on maternity leave
- race including colour, nationality, ethnic or national origin
- religion or belief
- sexual orientation
All early years settings, whether in the statutory, independent or private sectors including childminders must comply with the Act.
Direct discrimination under the Act involves treating a person less favourably than another because of a protected characteristic. It is a claim closely associated with those of harassment and victimisation.
Indirect discrimination occurs when a policy, procedure or practice is applied which adversely affects one protected group more than another and cannot be objectively justified.
The law also protects people if they are wrongly perceived as holding a protected characteristic or if they are associated with someone who has one, such as being a parent of a disabled child. It also provides protection to individuals against discrimination arising from disability and failure to make reasonable adjustments for those who hold disabilities.
All childcare providers you should:
- Eliminate discrimination and other conduct that is prohibited by the Act; and
- Promote fairness and equal opportunities for both those with and without a protected characteristic.
Nurseries must also:
- Make sure they are not discriminating by refusing access to their services.
- Ensure the terms upon which you provide the service to the person is not discriminatory or unfavourable;
- Not terminate the service to the person because of their protected characteristic or subject them to any other detriment.
This involves removing or minimising any disadvantages suffered by people due to their protected characteristics and taking reasonable steps to meet the needs of people with protected characteristics, where their needs are different from those of others.
How Early Year settings can comply with the Equality Act 2010
In general, many settings should already be complying with the Act in developing their practices to take into consideration:
- the Early Years Foundation Stage;
- OFSTED inspection requirements;
- The provisions of Education and Health Care Plans specific to individuals in their care and;
- The increasing availability of supportive resources, training and advice.
Settings need to understand the impact of their policies and practices upon people with protected characteristics. For example, the collection, analysis and evaluation of equality information on admissions and employment (at all levels) should assist in identifying any discriminatory practices. This will help to make informed choices and decisions. The information will also be required by the relevant Local Authority in monitoring its own duty.
The draft revised EYFS Statutory Framework ‘provides equality of opportunity and anti-discriminatory practice, ensuring that every child is included and supported’. It also requires settings to ‘have and implement a written policy to promote equality of opportunity for children in their care’ and lists what it must include.
The Equality Act 2010 provides a basic framework for ensuring that each child can maximise their potential, free from the constraints of discrimination and prejudice and their damaging consequences. However, it needs those responsible for delivering education and care in the early years to ensure the Act is implemented effectively so that these aims can be achieved.
Example of Discrimination in a Nursery setting
A well-publicised case hit the news in 2023 allegedly discussing a nursery treating a child with special educational needs ‘less favourably’ than their peers. Despite having a dedicated classroom assistant and the provision of 22.5 hours of classroom support each week, the nursery told the child’s family that the child would need to start school 15 minutes later each day than all the other children in their class, as well as finishing 15 minutes earlier. The justification for such treatment was unfortunately not publicised.
As a result of the treatment the child had been subjected to, the parents stated they had no choice but to remove them from the nursery.
The nursery subsequently accepted that they failed to make reasonable adjustments for the child and treated them unfavourably, as a result of their disability, compared to other children who did not share their protected characteristic. It is understood that after seeking advice from the Equality Commission, the parents pursued the matter for approximately two years, before settlement was reached.
A spokesperson for the Equality Commission noted “all children must be provided with opportunities to flourish at school, regardless of whether or not they have a disability”.
Can alleged discriminatory treatment ever be justified?
This is ultimately decided on a case-by-case basis. However, in some circumstances, a setting may be unable to meet their legal obligations and duty of care to all children in their care by attempting to provide equal or more favourable treatment to a child with a protected characteristic. It is important that a balancing exercise is conducted between the business needs (i.e. resources, finances etc) and duties and the discriminatory effect upon the individual, as well as being able to show that the setting has given consideration to alternatives that might achieve the same result, without being disadvantageous to the child in question.
Got a concern you would like to discuss?
If you require advice, please call the team at Stephensons for advice on 0330 107 5426.