Disability Discrimination

When (and how) does the Equality Act 2010 protect students with mental health problems?

Siân Jones-Davies and David HoranEversheds LLP

13 February 2015

Question 1

Mary informed the University on admission that she suffers from an unspecified eating disorder and OCD.

She is demanding that her lecture and tutorial timetable is rearranged to allow her to eat at set times in the privacy of her own room and to manage her hand-washing.

Is the University obliged to comply with her demand: - Yes? - No? - Depends?

Question 2Jo has emailed his programme leader to say that he is suffering from anxiety and his condition affected his performance in his exams last week. He wishes to submit a mitigating circumstances application.The University’s Fit to Sit regulation states that

students who sit examinations are only able to submit mitigating circumstances based on ill-health prior to an examination taking place. Is the University’s Fit to Sit regulation open to challenge under the Equality Act 2010: - Yes? - No? - Depends?

Question 3

Under the Equality Act 2010, a university is obliged to make a determination on whether a student with a disclosed or suspected mental health problem has a disability.

- Yes? - No? - Depends?

Some of the risks of ignoring mental health problems

• Poor academic performance/academic failure• Inferior student experience• Harm to self or others• Suicide• Disruption, management time, costs, morale,

complaints, court claims, police investigation, HSE investigation, prosecution, coroner’s inquest, media interest, reputational damage

Will a mental health problem always be protected under the Equality Act 2010?

• Definition of disability: – a physical or mental impairment– which has a substantial and long-term adverse

effect– on X’s ability to carry out normal day-to-day

activities

Obligations under the Equality Act 2010

• Duty not to discriminate against applicants/students with disabilities:– direct discrimination (treat less favourably because of

disability) – indirect discrimination (application of a provision,

criterion or practice resulting in particular disadvantage - unless a proportionate means of achieving a legitimate aim)

– discrimination arising from disability (treat less favourably because of something arising in consequence of disability - unless the treatment is a proportionate means of achieving a legitimate aim)

Obligations under the Equality Act 2010 cont’d

• Duty to make reasonable adjustments (including anticipatory adjustments) to avoid X being put at a substantial disadvantage:– due to a provision, criterion or practice– due to a physical feature or– but for the application of an auxiliary aid

• Duty not to harass• Duty not to victimise• Public sector equality duty to:

– eliminate discrimination, harassment and victimisation– advance equality of opportunity– foster good relations

• Equality impact assessments, monitoring and evaluation

Question 4

Mike disclosed on admission that he has bipolar disorder. Without considering the matter further, the University informs him that his opportunity to undertake a work placement will be more limited than would normally be the case.Is this an example of: - direct discrimination? - indirect discrimination? - discrimination arising from a disability?

Question 5Monica is an international student who has depression. She finds it difficult to concentrate, to sleep and to get up in the morning.Monica’s lecture timetable contains a number of 9am lectures, only a few of which she has attended this term. The programme leader has told her that the timetable cannot be altered.Is this an example of: - direct discrimination? - indirect discrimination? - discrimination arising from a disability?

Question 6

Jack has Tourette’s syndrome. A lecturer has asked him publicly in lectures to stop calling out and accused him of being disrespectful.Is this an example of: - direct discrimination? - indirect discrimination? - discrimination arising from a disability? - anything else?

Particular issues in practice (1)

• Spectrum of mental health problems (not always a disability)

• When are you on notice? Disclosure by students. Admission arrangements.

• Reading the warning signs (eg student’s behaviour/appearance, comments from staff/other students)

• Deciding how far your institution wants to go in supporting students (eg student support services, counselling, on site GP practice)

Particular issues in practice (2)

• Assessment • Sharing and disclosure of personal information (esp

without the student’s consent)• Record-keeping• Professional suitability / fitness to practise (competence

standards)

Scenario Linda is a postgraduate student living in University accommodation. One night last month, she returned to her shared University flat in a very agitated and distressed state. Her flatmates say she was drunk, very aggressive and threatening to throw herself from the fourth floor kitchen window.

Linda’s flatmates called Security who called the Police. The Police took Linda to hospital but she was discharged and returned to the University the following morning.

Late one night the following week, Linda’s flatmates again called Security to report that Linda was drunk, being verbally abusive and was smashing up the shared kitchen. When Security arrived they were assaulted by Linda. The Police were called and arrested Linda. On the way down to the Police car Linda kicked one of the Police officers.

Linda was subsequently charged with three counts of assault.

Scenario cont’d

Following the second incident, Linda’s flatmates complained to Residences saying that they had been extremely upset by recent events and wanted Linda moved out of the flat immediately and their rent waived for this term to compensate them for the stress they had all suffered.

The University wrote to Linda to inform her that, once the criminal prosecution was complete, it would be instigating disciplinary action against her for breach of its student code of conduct. It also informed her that she needed to vacate her University accommodation by the end of the week.

Scenario cont’d

Linda emailed back immediately apologising profusely for her recent behaviour and promising that there would be no repeat of it.

The email went on to say that she had been suffering from depression, made worse by the recent death of her step-mother, and was struggling to cope. It explained that her doctor had recently prescribed a change in her medication which she kept forgetting to take. The email said that she wanted to get back on track and intended to make an appointment with the University’s Wellbeing Service.

In view of Linda’s email, the University decided not to implement disciplinary proceedings or to require her to vacate her flat.

Scenario cont’dOver the weekend, however, there has been a further complaint by Linda’s flatmates alleging that she has been drinking heavily and has threatened one of her flatmates.

Security are called and ask Linda to accompany them to their office, which she agrees to do. On the way to the office, Linda staggers off in the direction of town saying that she is going to stay with a friend “if she doesn’t kill herself first”.

On Monday morning, Linda attends a tutorial. She looks pretty unkempt but seems sober and is chatty and engages in tutorial discussion. At the end of the tutorial, she hands in an assignment which is not due to be submitted until the end of next week.

As a result of Linda’s relatively calm appearance, the University decides to re-invoke disciplinary proceedings. It emails Linda to inform her of this and to say that she must not return to her University accommodation.

Questions

• Is the University exposing itself to challenge under the Equality Act if it deals with the matter under its disciplinary procedures?

• Does Linda have a disability?• Is Linda’s behaviour the direct result of a mental health

problem/disability?• What alternative process might be used to deal with the matter?• Would disciplinary action deal effectively with the matter?• Whatever procedures the University opts for, is it obliged to make

reasonable adjustments when implementing those procedures?• Would it make a difference if Linda was on a professional

programme of study?• Can Linda be excluded from her accommodation?• How should the University be dealing with the matter? What

support does Linda need?

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