DDA – Forthcoming post-16 education changes

1. DDA – Forthcoming post-16 education changes

2. New legal duties from September 2006 • Implementation of the European Employment Framework Directive in relation to vocational training in FE and HE • The DfES have consulted on the regulations which ended 30 December 2005 DDA 1995 (Amendment) (Further and Higher Education) Regs 2006

3. Amended DDA Code of Practice – Post 16 Education • Public consultation on the amended code of practice will take place from 27 Feb 2006 until 22 May 2006 • Numerous consultation events during 2006 are in the pipeline • Private training providers stay in scope of Part 3

4. Direct Discrimination • New duty (same concept as Part 2 DDA) • Less favourable treatment on the grounds of his disability • No justification

5. Direct Discrimination Treatment is on the grounds of a disabled person’s disability if that treatment is: • Less favourable than the way in which a person not having that particular disability is (or would be) treated; and • The relevant circumstances, including the abilities, of the person with whom the comparison is made are the same as, or not materially different from, those of the disabled person.

6. Disability-related discrimination • “Old-fashioned” less favourable treatment i.e. for a reason relating to his disability • Academic standards justification removed

7. Reasonable adjustments • The duty is to be extended to cover people who hold qualifications or apply for qualifications conferred by the education provider • No justification for failure to make a reasonable adjustment

8. Competence Standards • New concept (from the Qualification Bodies duties) • Introduced across the board in post- 16 education – not just for qualifications • Replaces the academic standards justification

9. Competence Standards Definition: An academic, medical or other standard applied by or on behalf of an education provider for the purpose of determining whether or not a person has a particular level of competence or ability.

10. Competence Standards • No duty to make reasonable adjustments in respect of the application of a competence standard • In limited circumstances the application of a competence standard may be justified

11. Competence standards Justification: • The standard is (or would be) applied equally to people who do not have his particular disability; and • Its application is a proportionate means of achieving a legitimate aim

12. Harassment New free standing duty Unwanted conduct which has the purpose of effect of: • Violating the disabled person’s dignity; or • Creating an intimidating, hostile, degrading, humiliating or offensive environment for him

13. After the relationship has ended In respect of former students it is unlawful: • To discriminate against the former student by subjecting him/her to a detriment; or • To subject him/her to harassment

14. Discriminatory Adverts Unlawful to publish an advert which indicates: • That the success of a person’s application for the course may depend to any extent on his not having any disability, or any particular disability; or • That the education provider is reluctant to make reasonable adjustments

15. Instructions and pressure to discriminate Unlawful for an education provider to instruct another person, or put pressure on him, to act unlawfully under the Post-16 provisions of Part 4. (Only DRC can take legal action)

16. Reversal of Burden of Proof • Where …… the claimant proves facts from which the tribunal could …. conclude in the absence of an adequate explanation that the defendant has acted in a way which is unlawful under this Part, the Court shall uphold the complaint unless the defendant proves that he did not so act • Applies to Post-16 claims of discrimination, harassment and victimisation, but does not apply to definition of disability. • Standard of proof remains the balance of probabilities • See Igen -v- Wong ([2005] EWCA Civ 142 (18 February 2005) for further details.