Is it discrimination under the Equality Act to sanction my ADHD son for (low-level) behaviours directly arising from his condition?

IPSEA replies:

There are different types of discrimination under the Equality Act 2010 (EQA) and one of these is discrimination arising from a disability. Section 15 of the EQA states:

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This occurs when a setting treats a disabled person unfavourably because of something arising in consequence of their disability, such as disciplining a child with ADHD for fidgeting or shouting out in class – these are often behaviours which are a consequence of their ADHD.

Section 15 above states that where a disabled person is treated unfavourably, there could be a defence if the setting can show that it is a ‘proportionate means of achieving a legitimate aim’. The first thing to consider therefore is whether the sanctions are proportionate to the behaviour. Then consider if there is a legitimate aim to the sanction.

There is guidance for schools about the EQA published by the Equality and Human Rights Commission (EHRC) which provides useful information about legitimate aims. Paragraph 5.34 of the guidance lists the following as legitimate aims:

• ensuring that education, benefits, facilities and services are targeted at those who most need them;
• the fair exercise of powers;
• ensuring the health and safety of pupils and staff, provided that risks are clearly specified;
• maintaining academic and behaviour standards; and
• ensuring the wellbeing and dignity of pupils

Paragraph 5.35 then clarifies that even where one of these applies, the sanction must still be a proportionate way of achieving that aim and defines this as ‘appropriate and necessary’. It is therefore possible that the school will have a defence but it is often useful to discuss this with the school SENCO and have a discussion about how they could support your child rather than sanction, potentially through further SEN support or an EHC plan. You should also check the school’s behaviour policy to check that it is being followed.

Before establishing that discrimination has occurred, it is important to ensure that your child meets the legal definition for ‘disabled’ set out in section 6(1) EQA:

A person (P) has a disability if—
(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

You can download the EHRC guidance here: Technical Guidance for Schools in England | Equality and Human Rights Commission (equalityhumanrights.com)

There is also information about disability discrimination on the IPSEA website: Disability discrimination | (IPSEA) Independent Provider of Special Education Advice