Gateways guidance: 4.1 Disability discrimination

In providing education, it is unlawful to discriminate against disabled people without justification, or to treat a disabled person less favourably than others because of their disability. The law also requires medical schools to avoid putting disabled people at a substantial disadvantage by making reasonable adjustments. They must anticipate the adjustments that disabled people as a group will need when using any university or medical school services, from initial publicity and recruitment, through learning and assessment, to the awards ceremony.

Education providers have duties under Part 6 of the Equality Act 2010. Education providers will also need to consider all other provisions of the Equality Act 2010 which impact on employment, the provision of services and meeting the Public Sector Equality Duty (this Duty is expected to apply from April 2011).

Universities, medical schools, postgraduate deaneries and employers have four fundamental duties in relation to disabled people.

1. 1. The duty to avoid types of unlawful discrimination against people with disabilities including:
   • direct discrimination
   • indirect discrimination
   • discrimination arising from disability 
   • failure to make reasonable adjustments (including the anticipatory duty)
   • victimisation
   • harassment
2. Direct discrimination for disability is when a person treats another less favourably because of their disability.
3. Indirect discrimination occurs where certain provisions, criteria or practices imposed by an employer or education provider have an adverse impact disproportionately on one group or other.⁴
4. Discrimination arising from a disability is where a disabled person has been treated unfavourably because of something arising as a consequence of their disability.
5. Victimisation means treating someone less favourably because they have made a complaint of discrimination or are thought to have done so; or because they have supported someone else who has made a complaint of discrimination.
6. Harassment is unwanted conduct which has the effect (intentionally or unintentionally) of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment which interferes with an individual's learning, working or social environment or induces stress, anxiety or sickness on the part of the harassed person.
7. The Equality Act also introduced the concept of combined discrimination but this was not brought into force in October 2010. Combined discrimination is similar to direct discrimination but it concerns adverse treatment relating to a combination of two characteristics (for example, disability and race) rather than because of a single characteristic. However, even where a person has more than one disability, disability can constitute only one characteristic for this purpose. For example, discrimination linked to both visual impairment and HIV cannot be combined discrimination under the Act since they are both forms of disability. A person who is treated less favourably because of two disabilities would be able to bring claims of discrimination for each disability separately. 
8. 2. The anticipatory duty. This requires consideration of, and action in relation to, barriers that impede people with one or more kind of disability in advance of an individual using a service. This includes checking policies, practices, facilities and procedures as well as providing auxiliary aids and services, such as hearing loops, ramps and alternative print formats.
9. 3. Reasonable adjustments⁵: The duty to make reasonable adjustments to policies, practices, facilities and procedures to meet the individual requirements of disabled people. Technology to assist disabled people (known as ‘assistive technology’) is developing rapidly, and the university disability officer should have full information on what is available. These requirements are:
   1. a. To take reasonable steps to avoid the substantial disadvantage where a provision, criterion or practice puts people with disabilities at a substantial disadvantage in relation to the provision of a service or exercise of a function.
   2. b. To take reasonable steps to avoid the substantial disadvantage, or to adopt a reasonable alternative method of providing the service or exercising the function, where a physical feature puts disabled people at a substantial disadvantage in relation to the provision of a service or exercise of a function.
   3. c. To take reasonable steps to provide an auxiliary aid where people with a disability would, but for the provision of such an auxiliary aid, be put at a substantial disadvantage in relation to the provision of a service or exercise of a function. 
10. 4. The Public Sector Equality Duty: The duty to promote equality and to eliminate discrimination. The Equality Act 2010 introduces a single public sector duty covering the six existing equality strands including disability. The single duty is not expected to come into force until April 2011 so it is therefore advisable that medical schools consider and apply the provisions in the Disability Equality Duty until further guidance is issued.

Overall responsibility for complying with disability discrimination legislation within the higher education sector lies with the governing body of the university. Medical schools throughout the United Kingdom have duties and responsibilities under Part 6 of the Equality Act 2010 as part of the university, unless the medical school is legally separate from the university. In this instance, medical schools providing services to the public are likely to be covered by Part 3 of the Equality Act 2010 and must alert staff to their legal responsibilities.

Medical trainees at postgraduate level are protected in two ways: as trainees of a postgraduate deanery and as employees of a trust or health board. At this stage in their training, not only do disabled trainees have rights to fair treatment in education, they also have rights under Part 5 of the Equality Act 2010 - the employment provisions.

Medical schools should be aware that the Act contains provisions which enable employers to take action to achieve fuller and more effective equality in practice for those who are socially or economically disadvantaged or otherwise face the consequences of past or present discrimination or disadvantage. These are known as positive action provisions. 

Because universities and medical schools provide the education and training necessary for a student to register with a licence to practise as a doctor with the GMC, they must ensure that the examinations and tests for which they are responsible are free from disability discrimination. Medical schools therefore must ensure that all their policies, procedures and practices are equitable.

In the European Union, progress towards eliminating discrimination is on the basis of Council Directive 2000/78/EC of 27 November 2000 which establishes a general framework for equal treatment in employment and occupation. Once a disabled person is registered as a doctor in one Member State, they have the right to seek employment in another Member State.

European and international students have the same rights under the Act as home students. Medical schools need to ensure that they have in place the necessary systems to identify the needs of disabled students coming from outside the United Kingdom. However, international students are not eligible for Disabled Students’ Allowances so institutions must fund any reasonable adjustments themselves.