In our Summer term update for the education sector, Burnetts' specialist education lawyers conclude the Discrimination by Association feature from our last briefing, as well as explaining the new powers to remove under-performing teachers, the proposed HE and FE Codes of Practice relating to the Equality Act 2010 and the impact of the Public Equality Duty. Last of all, we take a look at  website cookie compliance as the Information Commissioner's enforcement holiday comes to an end. 

In Part 1 of this article education law expert Patricia Hall expressed the view that direct discrimination by reason of disability could occur even where the disability is not that of the person who is being treated less favourably, but instead is an attribute of someone associated with that person, e.g. their disabled child (“discrimination by association”).

Part 2 considers whether there is also a positive duty on an HE or FE institution to make reasonable adjustments in favour of a student who is associated with a disabled person. 

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Michael Gove, the Education sSecretary, has announced new powers that will allow head teachers to effectively remove an under-performing teacher within a term.  The new measures are considered to be in response to growing criticism of the fact that current procedures have only seen 17 employees struck off in the past decade.

Under current procedures it can take a period of a year, or longer, to remove a teacher for underperformance.  This has seemed to leave most head teachers without the will or perseverance to see these protracted procedures through to a conclusion.  In addition, it has become common practice in the education sector for underperforming teachers to simply move from school to school in order to avoid any potential sanction which would originate from their underperformance.

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Following the introduction of the Equality Act 2010, the Equality and Human Rights Commission has been tasked with completing a consultation with a view to preparing Codes of Practice to assist institutions and businesses in their aim to be compliant with the Equality Act. 

In order to assist Further and Higher Education providers, the Commission is drafting the Code of Practice in Further and Higher Education.

While the Codes of Practice are not intended to be binding on courts or tribunals, they are intended to be persuasive in hearings.  The intention therefore is to create a code that users can feel confident in and which will assist them in applying the provisions of the Equality Act 2010.

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The Public Equality Duty came into force on 5 April 2011.  It effectively replaced the previous equality duties which related only to disability, race and gender and sought to introduce a wider duty with less of an administrative burden on public bodies.

The Equality Duty is a duty on all public bodies, which includes institutions of further and higher education, requiring them to consider the needs of all individuals in their day-to-day work – in sharing policy, delivering services and in relation to their own employees.

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We have looked at the changing picture with regard to cookies’ compliance in our monthly InfoLaw updates. Our views are collated here, as we enter the countdown to the end of the “enforcement holiday”.

We understand from our clients in both HE and FE that this is a topic of interest to the sector and it is an issue worth watching as website operators look ever more closely at what might (and might not) be acceptable going forward.

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For further information on any of the issues featured in this education law update, contact Burnetts' education law team or meet the team here.