Education Law and Discrimination: Equality Act 2006 and other discrimination law

Author: Derek O'Carroll | Posted: June 3, 2009

Download Full Article: Discrimination and Education Law handout 1 June 2009.pdf

MURRAY STABLE
and
LEGAL SERVICES AGENCY

SEMINAR ON EDUCATION LAW
DISCRIMINATION AND EDUCATION LAW
1 June 2009

Notes by Derek O'Carroll, Advocate

1 Introduction
1.1 Discrimination law is rather complex.  It has developed bit by bit over the last 44 years becoming increasingly tangled and detailed as the years have passed, especially with the advent of EU legislation and human rights law.  There are now nine major pieces of discrimination legislation, around 100 statutory instruments and over 2,500 pages of statutory guidance and codes of practice, to say nothing of the European aspects.
1.2 The legislation affecting education includes the Sex Discrimination Act 1975 (SDA), the Race Relations Act 1976 (RRA), the Disability Discrimination Act 1995 (DDA), the Equality Act 2006 (EA) and the Equality Act (Sexual Orientation) Regulations 2007 (SOR).
1.3 The legislation imposes a large number of duties on education authorities and others providing education. They include various duties on public authorities to positively promote equality , to develop strategies to improve access to education for those with disabilities.  It also provides for detailed rights for those in education  and various means of enforcement of those rights .
1.4 Despite, or perhaps because of, the breath and detail of the statutory provisions, there is a paucity of Scottish cases involving education and claims of discrimination.  A search of the Scottish Courts website reveals less than 40 cases concerned with education at all. Of these, a number are reparation actions and other cases only tangentially related to education.  I have found just three cases on the site concerning both education and discrimination being Mackay-Ludgate v Lord Advocate, a decision of Lord Philip, 21 December 2001; Parent A v East Ayrshire Council, Sheriff Ireland 21 September 2006 (reported as 2006 FamLR 112) and the only appellant decision being that of (Temporary) Sheriff Principal Colin McKay, in ES as parent and legal representative of LS v K School , 8 May 2009. In addition, there is the unreported decision (not available on the Scottish Courts Website) of Sheriff Totten in Taylor v Glasgow City Council,  16 November 2006 concerning the provision of a pupil support assistant and whether provision of that assistant was covered by DDA. There is also the reported case of Dove v Scottish Ministers 2002 SLT 640 and 1296 concerning a challenge on human rights grounds (including article 14) to a decision to end the grant aided status of a primary school in Dunblane.
1.5 Of course, there may well be other cases which are not reported anywhere.  And there may well be cases that have commenced but have been settled.  Nonetheless, the almost complete absence of Scottish cases in the education and disability field is perhaps surprising especially when one considers the vast amount of caselaw in the employment field, both north and south of the border. It may be that lack of access to specialist help and resources is at least in part responsible.  Perhaps the enforcement mechanisms play a part.  The very complexity of discrimination law may play a part together with a lack of readily available authoritative legal guidance and analysis in this area. Of course, it may be that the almost total absence of litigation in this field reflects near universal good practice among education authorities and others providing education.
1.6 It would be quite beyond the scope of this paper in the limited time that we have available today for me even to give a general overview of the law in relation to education and discrimination. Instead, I will seek to comment on just three areas.  First, the terms of the Equality Act 2006, one of the most recent pieces of new equality legislation affecting education.  Second, a look at enforcement.  Finally, a look at the future in the shape of the Equality Bill.

(Continued.  For full article please click on the link at the top of the page.)