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Leadership webinar: disability discrimination (video and webchat)

Discussion in 'Senior Leadership Team' started by AndrewFIS, Mar 28, 2017.

  1. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Disability discrimination is a very complicated matter. Often schools can fall foul of the law even when they believe they are acting responsibly.

    As part of the TES Leadership webinar series, I’ll be putting your questions to Sally Robertson, a barrister at Cloisters Chambers.

    We will examine how schools can understand their responsibilities towards disability discrimination.

    Post your questions below now - and, if you can, join in our live webchat on April 25 at 4.30pm.

    Before that, you can watch a video we’ve made in which Sally and I discuss the issues, with key advice for school leaders.

    1920x1080-leadership-video-still-v2.jpg

    To access all the videos in the TES Leadership series, plus an exclusive database of grants available to schools, become a TES Leadership subscriber.
     
  2. TES_Rosaline

    TES_Rosaline Administrator Staff Member

    The webinar video will be available for seven days in this thread after the webchat. If you wish to view the webinar after 2nd May or to access all the videos in the TES Leadership series, plus an exclusive database of grants available to schools, become a TES Institutional subscriber. You can find out more information here.
     
  3. TES_Rosaline

    TES_Rosaline Administrator Staff Member

    Hi,

    Don't forget to submit your questions below ahead of tomorrow's webchat.

    Thank you.
     
  4. TES_Rosaline

    TES_Rosaline Administrator Staff Member

    Good afternoon and welcome to today’s webchat.


    The TES Leadership webchats give you the opportunity to put your questions to industry experts about key school management and operational issues.

    In a few moments I will hand you over to Andrew, who is editor of FIS, who will be hosting this week's hour-long webchat.

    Andrew and this week's guest, leadership expert panel member Sally Robertson, a barrister at Cloisters Chambers, who will be available for the next hour to answer your questions.

    If you have any questions please submit them below. Don't worry if we run out of time, any unanswered questions will be responded to and posted on this thread later this week.

    I'll now hand you over to Andrew.





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    Please click here for full Terms and Conditions which apply to all TES Global’s websites.
     
  5. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Hello and welcome to this webchat on disability discrimination. Joining me is Sally Robertson, a barrister at Cloisters Chambers. For those of you following this thread, please feel free to post your query. Remember to refresh your page to see the updates as they appear.
    Thanks for joining us, Sally.

    How do disability discrimination cases fare in the ET in comparison to other claims?
     
  6. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    For a precise answer, you'd have to look at the MOJ statistics. in real time, for any individual or school that gets caught up in a disability discrimination case, it is not much fun. Far better to concentrate on avoiding getting to a tribunal. Get things right if possible. If not, try and reach a sensible agreement.
     
  7. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    How about in the EAT?
     
  8. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Check the MoJ statistics. In practice, there are some areas where the parameters of how the law applies to particular sets of facts is still being worked out. In others, a tribunal just misapplies or misunderstands what should be settled law
     
  9. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Why are so many disability discrimination cases resolved on appeal?
     
  10. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    You'd need to check MoJ statistics for precise figures and compare the ET and EAT results. In practice, there are still areas of uncertainty, so whichever side loses there is likely to be a good argument that the ET erred in law. Remember that on appeal one cannot argue facts, only that the tribunal made a legal error
     
  11. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Doesn't this make it very difficult for schools to be sure of when and how they are in breach of the law?
     
  12. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Sadly, ignorance isn’t an excuse. The only ignorance that can excuse matters is not knowing that the worker has a disability, or that the disability puts her at a disadvantage. But if one could reasonably have been expected to know about the disability or its effect, the actual ignorance does not count.

    If someone isn’t clear on what the law means, there is more detailed statutory information available to help clarify how the Equality Act works. Particular issues are also resolved in case law – decisions of the Employment Appeal Tribunal and higher courts set precedents which should be followed in similar situations.

    The Secretary of State issued guidance in 2011 on matters to be taken into account in determining questions relating to the definition of disability. It is available on-line. It is guidance, not law, but tribunals will take it into account where relevant. It gives a number of useful examples to help show how the legal tests work. Although not the last word on what the law means and whether a particular set of facts comes within the legal tests, once one has read it, things do become much clearer.

    Also in 2011, the Equality & Human Rights Commission (EHRC) issued a statutory Code of Practice on Employment. This covers all the strands of discrimination law in employment and work-related activities. It gives a detailed explanation of the Equality Act, with separate chapters on discrimination arising from disability and on the duty to make reasonable adjustments
     
  13. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    A key element appears to be getting reasonable adjustments in place. How can a school make sure it doesn’t breach the law?
     
  14. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Importantly, a school must start by understanding the core principles. The Guidance and Code of Practice both help with this. The duty to make reasonable adjustments is a cornerstone of the Act. Employers have to take positive steps to make sure that people with disabilities can access and progress in employment. This needs more than just treating everyone in the same way. Disability often means one needs extra help to be on a par with others. If you don’t understand the disability and how it might be affected by your standard policies, procedures and practices, your school is at risk.

    To minimise that risk, keep an open mind. In individual cases, find out how the disability affects the worker. You can find out from the worker direct. Or contact an organisation that covers that disability for more information. Obviously, you can have back up help from GPs and OH. The DWP's Fit for Work service may also assist; as can Access to Work.

    You can also think more strategically. Whenever you review old policies and procedures, think about their past and potential effect on different disabilities. Similarly, when something new comes up, think about its potential disability impact.
     
  15. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    As PCPs (Provision, Criterion or Practice) are so important, what is a good way to identify them?
     
  16. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    A PCP is something that either is or would be applied to a group of people but which puts a disabled person at a substantial disadvantage in comparison to someone without that disability. "Substantial" means a disadvantage which is more than minor or trivial.

    Some PCPs are obvious, eg a requirement to work full-time /contracted hours, or a policy of allocating parking spaces to SMT members only. Others much less so. Many people, including lawyers, find it difficult to match a particular disadvantage with the PCP that caused the disadvantage.

    It can help to work backwards. Start by looking at the nature of the disadvantage and the disability. What do you think caused that disadvantage? How can you work from there to find the PCP that caused the disadvantage and that could apply to others? There’s nothing wrong with that process, but you do need to get the PCP right. It’s got to be workable. That means it must be possible to apply it to more than the individual concerned.

    Think widely. You don’t need to be too technical – it’s OK to take a real world approach. The EHRC’s Code of Practice says a PCP can include any formal or informal policies, rules, practices, arrangements or qualifications, as well as one-off decisions and actions. However, a one-off mistake in a disciplinary procedure is unlikely to amount to a PCP.

    When you think you have identified a particular PCP, test it by looking at its effect or its potential effect on particular disabilities. When it comes to what adjustments are reasonable, the starting point is what is needed to lessen any disability disadvantage caused by the PCP.
     
  17. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    If an employer doesn’t get the reasonable adjustments right, and treats a disabled person like everyone else, does that make it more likely that they will discriminate because of something arising in consequence of disability?
     
  18. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Yes. If reasonable adjustments haven’t been implemented and would have made a difference to the outcome, a school is unlikely to be able to objectively justify the unfavourable treatment.

    So, for example, if someone is dismissed because of long-term sickness absence, that is unfavourable treatment. If the absence arises in consequence of disability but reasonable adjustments would have made a difference, it is difficult to see how dismissal was a ‘proportionate response’ to a legitimate aim.

    The point is that discrimination also happens where people in materially different situations are treated the same. That is the essence of disability discrimination.
     
  19. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Can you explain the test for discrimination arising in consequence of disability? What is the test and how is it applied?
     
  20. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    This test comes under Section 15 of the Equality Act 2010. Section 15 was introduced specifically to overturn the effect of the House of Lords decision in Malcolm v London Borough of Lewisham. Since 2010 there have been a number of different decisions and it is fair to say that the parameters of what counts as discrimination arising from disability are far from clear.

    Looking at the s.15 test, the employee or worker has to show
    · she has been treated unfavourably
    · and that the reason for this is because of
    · something
    · that something must arise in consequence of disability

    Even if the employee or worker shows all that, it is not discrimination if the employer can show that:
    · the treatment
    · is a proportionate means
    · of achieving a legitimate aim.

    Nor is it discrimination if the employer didn’t know and couldn’t reasonably be expected to have known that the person had a disability.
     

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