Disability discrimination in further and higher education

Here you'll find advice on disability discrimination in colleges, universities and other providers of further education (FE) and higher education (HE) in England, Wales and Scotland. If you live in Northern Ireland, where the law is different, you may want to contact NI Direct.

Because we’re talking about legislation, we’ll sometimes use ‘disabled’ as a general term that includes autism.

What does 'disability' mean?

The Equality Act 2010, (The Equality Act), section 6 says that someone has a disability if he or she has a physical or mental impairment that has a long-term and substantial adverse effect on his or her ability to carry out normal day-to-day activities.

‘Mental impairments’ include autism, but you don’t have to have a diagnosis to be considered disabled.

The Equality Act protects students, prospective students and, in some circumstances, former students from discrimination in further and higher education.

What does the Equality Act cover?

An FE or HE provider must not discriminate against a disabled student in relation to:

admissions
how education is provided
exclusion
any other disadvantage or denial of opportunity or choice.

How education is provided includes:

teaching
assessments and exams
facilities, including lecture halls, libraries and IT
leisure, recreation, entertainment and sports facilities
the physical environment
disciplinary procedures.

FE and HE providers have a responsibility towards disabled pupils for internal exams. It’s also unlawful for general qualification bodies (GQBs) and other qualification bodies, such as the General Medical Council, City and Guilds, and the Law Society to discriminate against students taking formal examinations. You can read more about this in our exam guidance.

However, discrimination can still sometimes take place, even if the provider believes they’re acting in the student’s best interests.

Education, health and care (EHC) plans in college (England only)

If you have an EHC plan, this should work alongside any extra support the college provides you.

What types of discrimination are there?

There are a few different types of disability discrimination. They are:

direct disability discrimination
indirect disability discrimination
discrimination arising from disability
a failure to make reasonable adjustments
harassment and victimisation

We’ll now look at each of those, one by one, in a bit more detail.

Direct disability discrimination

Direct disability discrimination is when someone is treated less favourably than others because of their disability.

Example:

An autistic student is excluded from a course trip because the education provider doesn’t think they’ll get the same benefit as other students.

Direct discrimination is always unlawful. While FE or HE settings can have course requirements, these must be necessary. For example, the Equality Act permits single-sex institutions to admit students of only one sex without this being unlawful direct sex discrimination. It’s also not unlawful direct discrimination to treat a disabled person more favourably (than a non-disabled person) because of their disability.

Example:

A university organises an open day for prospective students. It arranges for an autistic student to visit an hour before other prospective students arrive. This more favourable treatment of a disabled person is lawful under the Equality Act.

If a college or university treats a student less favourably because they mistakenly think the student has a disability, that’s called direct disability discrimination by perception. Also, if a student is treated less favourably because they’re friends with a disabled person, that’s known as direct disability discrimination by association.

Indirect disability discrimination

Indirect disability discrimination is when a policy or practice is applied in the same way to everyone but puts a disabled student at a disadvantage. That is unless the college or university didn’t know the student had a disability, or it can be justified as being a ‘proportionate means of achieving a legitimate aim’. We’ll explain what this means in a bit more detail in the next section.

Example:

A college or university offers a science course based at two different sites. This means that students need to attend lectures at one site, then immediately go to a practical session at the other site. This may disadvantage autistic students if they have difficulties relating to mobility/anxiety/sensory sensitivities. Unless it can be justified, this is likely to be unlawful indirect disability discrimination.

Discrimination arising from disability

If a student is treated unfavourably because of something connected to their disability, and this can’t be justified, it’s discrimination arising from disability. However, it won’t be unlawful if the person who discriminated didn’t know, and couldn’t have reasonably been expected to know, that the student was disabled.

Example 1:

An autistic student is often outspoken in tutorials. The tutor considers him ‘disruptive’ and asks him to stop attending. Given the student has difficulties with social communication, this is likely to be discrimination arising from disability, unless the tutor’s response can be justified.

Example 2:

An autistic student needs to take some time away from their studies due to mental health reasons linked to autism. The college does not record disability-related absences separately from general absences. It then takes disciplinary action when the student has exceeded the allowed number of absences in a term. As the absence was related to the student’s disability, the college’s actions would be discriminatory unless they can justify what they did as being ‘a proportionate means of achieving a legitimate aim’. An example of a legitimate aim would be for the college to maintain academic standards. However, in the last example, was disciplinary action a proportionate way of achieving that aim? A more proportionate response may be for the college or university to:

provide appropriate support for the student
make tailored, reasonable adjustments to reduce the student's anxieties.

Education providers can often prevent unfavourable treatment that amounts to discrimination arising from disability by making reasonable adjustments.

A failure to make reasonable adjustments

Colleges and universities have a duty to make reasonable adjustments to avoid putting disabled students at a substantial disadvantage compared to non-disabled students. This applies to:

provisions, criteria and practices – the way in which a college or university operates on a daily basis, for example an exclusion or discipline policy
physical features, like entrances and exits, toilets, lighting, flooring and furniture
auxiliary aids and services, like supportive equipment or a member of staff.

The duty to make reasonable adjustments does not apply to ‘competence standards’. Colleges and universities use these to gauge a student’s level of competence or ability – for example scoring at least 50% in an assessment. However, reasonable adjustments must be made so that the assessment process itself does not disadvantage disabled students.

For example, the mark required to pass an exam would be a competence standard, so wouldn’t be subject to the duty to make reasonable adjustments. This means a college does not have to lower the pass mark for autistic students. However, it might be considered a reasonable adjustment to give an autistic person more time to complete an exam and/or a laptop if their disability causes them to write more slowly.

You’ll find more examples of reasonable adjustments that can be made for exams (also known as ‘access arrangements’ or ‘special arrangements’) in our exam guidance. An adjustment would not be considered reasonable if it affects the security or integrity of the assessment.

A recent tribunal ruling means that schools and colleges must have made appropriate reasonable adjustments for autistic or disabled students, aged under 18, before they can exclude them. Previously, a loophole in the Equality Act meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse', even when that was caused by a lack of appropriate support.

However, this loophole has been closed and allowances should be made for behaviour that’s due to a student’s autism and their needs not being met. Colleges and universities need to make reasonable adjustments so that students can fully participate in their education.

While the ruling applies to all children in any education environment, including colleges, all institutions should consider its implications for their autistic students. When it comes to reasonable adjustments, education providers should consider:

if the student is at a substantial disadvantage, such as falling behind with coursework
if the disadvantage could be avoided, for example by using one-to-one support or specialist teaching
if it’s reasonable to take these steps.

The term ‘reasonable’ is not defined in the Equality Act, but things that are likely to be taken into account are:

the extent to which the disadvantage would be overcome
the resources the education provider has, and the costs and practicality of making the adjustment
the type of education, benefit, service or facility being provided
how being autistic affects the student
how much other support the student gets, for example Disabled Students Allowance or an EHC plan
health and safety requirements
the interests of other students and people.

Examples of reasonable adjustments:

An autistic student finds it hard to keep up with the lectures. The lecturer gives them a printout of the PowerPoint presentation prior to the lecture and organises one-to-one time with the student after the lecture to discuss its content.
A college or university decides that all the classes on a particular subject are held on one site, rather than two. Or they ensure that students with mobility or anxiety issues are given enough time and support in travelling between sites. This could eliminate any potential discrimination.
Colleges take into account the reasons why an autistic student is upset and using inappropriate language in a tutorial. For example, the tutor may have missed a tutorial session, causing the student distress as they find it difficult to cope with unexpected changes. As a result, the college does not suspend the student for this incident.

It’s unlawful for a college or university to ask a student to pay for reasonable adjustments. To help them avoid discriminating unlawfully, education providers should:

plan in advance, anticipate the requirements of autistic students and review the reasonable adjustments in place
offer students plenty of chances to let them know if they’re autistic, including at the pre-entry and admissions stages
ask autistic students for their views on reasonable adjustments and consult local and national disability groups
properly maintain auxiliary aids and have contingency plans in place in case of failure
encourage staff to develop additional skills for working with autistic students
ensure staff are aware of their duty to make reasonable adjustments and understand how to communicate with autistic students so that reasonable adjustments can be identified and made.

Harassment and victimisation

If you’ve made a complaint or allegation of discrimination against a college or university and they treat you unfairly as a result, this is unlawful victimisation. This also applies if they treat anyone else who helped with the complaint unfairly (subjects them to a detriment).

Harassment is any behaviour, by staff, that’s related to a student’s disability and has the purpose or effect of:

violating their dignity, or
creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

It is not necessary for the student to say that he or she objects to the behaviour for it to be unwanted.

For example, a college tutor repeatedly makes remarks about autistic people belonging in special schools and hospitals and not in college. An autistic student is in the class and finds the tutor’s behaviour degrading and offensive. This could be harassment related to the protected characteristic of disability.

What can I do if I've been discriminated against?

If you feel you’ve been discriminated against, you can:

Ask if you can discuss the situation with your tutor or disability advisor.
Contact the Equality Advisory and Support Service for advice.
Follow the written complaints procedure. Student support services and student unions may be able to help. You can also read the Government Equalities Office guidance to help you decide if you have a valid complaint and what you can do about it.
Access conciliation and mediation services. For higher education in England or Wales, it’s the Office of the Independent Adjudicator (OIA). In Scotland, it’s the Scottish Public Services Ombudsman. For further education in England, it’s the Education and Skills Funding Agency.
Make a claim of unlawful discrimination to the county court in England and Wales or the sheriff court in Scotland. You need to do this within six months of the latest incident. You should get legal advice beforehand.

A county or sheriff court can:

declare whether unlawful discrimination, harassment or victimisation has taken place
order the education provider to take an action (like accepting your application) or stop them from discriminating against you in the future
order the education provider to compensate you
order the education provider, or you, to pay legal costs.

If you feel you’ve been excluded from a college or university in Great Britain as the result of disability discrimination, read our Exclusion from college or university (Great Britain) guide.