Looking into the Equality Bill

The Equality Bill, introduced at the end of April, is designed to offer protection for and promote the interests of 'protected characteristics': race, religion, gender, sexual orientation, transgender, age, disability, marriage and civil partnership, maternity and pregnancy.

ASCL members should be able to commit fully to its three key principles: to eliminate discrimination and harassment, promote equality of opportunity and foster good relations between different groups.

The initial clause imposes a duty on certain public authorities, when making strategic-level decisions, to take into account inequalities stemming from socio-economic disadvantage.

Schools are not specifically included in the list of public authorities but the legislation allows additional bodies to be named and for many schools the local authority duty will impact on admissions. ASCL has sought reassurance that 'strategic' level means major decisions such as the location and nature of schools and that local authorities will not need to ask schools for additional information, in the school census for instance, to achieve this.

Following increasingly normal government practice, there are many places in the bill where the secretary of state is given the power to make orders to define or redefine offences and modify the legislation itself.

One interesting provision is that the secretary of state can give an order to a school to change a provision, criterion or practice even though no complaint has been raised. One could see a possibility of a school being told to change its uniform policy or its exclusion policy because it appears that it discriminates.

In another clause, the judgement in the Malcolm case, which changed the correct comparator in disability discrimination cases, is partly over-turned by making an indirect discrimination claim possible in disability cases.

This means that if a school applies the same penalty to misbehaviour by a student with ADHD as to a student who does not, a claim may be brought and the school will have to show that its practice is a 'proportionate means of achieving a legitimate aim'.

ASCL has expressed its concern about the substantial difficulties this may cause for headteachers faced with very difficult decisions regarding exclusion of young people with disabilities.

However, some dangers appear to have been avoided. Although fixed-term exclusions continue to be scrutinised by the First Tier Tribunal (formerly the SENDIST), permanent exclusions will only be subject to an independent appeals panel, as will admissions.

There is no proposal to change the limitation of reasonable adjustments - that is, to provide ancillary aids or alter buildings - for those with physical disabilities.

Finally, age discrimination will not apply below the age of 18, which ASCL welcomes on the basis that to extend it to under-18s would change the whole balance of children's and parents' rights and responsibilities.

Though immensely complex, the bill will hold few terrors for schools that have established active equality and accessibility policies. Much will have to be left to the courts to tease out, but the fact that so much is taken from court judgements probably means that there will be few surprises.