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www.sghmartineau.com Disability Discrimination & Fitness to Study Smita Jamdar Partner & Head of Education 27 June 2013
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.com Disability Discrimination & Fitness to Study
Smita JamdarPartner & Head of Education
27 June 2013
www.sghmartineau.com
Overview
• Obligations to students with disabilities• The duty to make reasonable adjustments• Placements• Data protection & confidentiality• Fitness to study/duty of care
www.sghmartineau.com
Disability
• Physical or mental impairment• Substantial and long-term adverse effect• Normal day-to-day activities• Hidden disabilities• Mental health conditions
www.sghmartineau.com
Who and what?
• Applicants• Students• Former students• Admissions• The provision of education• Access to benefits, facilities or services• Exclusions
www.sghmartineau.com
Direct discrimination
• Less favourable treatment• Because of disability• Cannot be justified• Stereotypical assumptions
www.sghmartineau.com
Discrimination arising from disability
• Unfavourable treatment • In consequence of a disability • Unless a proportionate means of achieving
a legitimate aim
www.sghmartineau.com
Indirect discrimination
• Provision, criterion or practice• Disadvantage and comparator• Puts individual at disadvantage• Not a proportionate means of achieving a
legitimate aim• Competence standards
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Duty to make reasonable adjustments
• Substantial disadvantage• Provision, criterion or practice• Physical feature• Auxiliary aids & services• “Relevant matters”• Competence standards • Anticipatory duty• Confidentiality
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Reasonableness
• Effectiveness• Type of service• Size, nature & resources of institution• Effect of disability• Practicability• Costs• Availability of grants/loans• Availability of other aids & services• Health and safety• Relevant interests of others
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Disability – miscellaneous
• Article 14• General equality duty• New diagnosis/deterioration
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Placements
• Employment service providers• Duties not to discriminate/harass/victimise• Reasonable adjustments• Claims in employment tribunal• Duty to liaise? • Duty to select appropriate providers• Complaints about placements
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Data protection
• Sensitive information• Specific consent• Consequences of refusing consent• Disclosure in absence of consent• Other grounds for disclosure• Parents
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Breach of Confidentiality
• Information has the quality of confidence• Imparted in confidence• Unauthorised disclosure• Defences: Consent Compulsion of law Public interest
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Fitness to study
• Contract law Express provision Follow process Reasonable care & skill
• Human rights & public law Right not to be denied an education Follow process Natural justice Proportionality
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Fitness to study – duty of care
• The duty• Forseeability & Causation• Remoteness• Pre-existing conditions• Competing duties of care• Vicarious liability? • Suicidal students
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Health and safety
• Duty to employees• Duty to other students• Criminal offences• Risk assessment
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Contact us:
Going further & higher – http://blog.sghmartineau.com
Smita JamdarHead of EducationT: 0800 763 1332
