Discrimination in schools: minimising the liability risk

Education broadens horizons and opens minds. However, even in such an environment as this, discrimination can rear its ugly head. Following a recent report by the NASUWT and the Runnymede Trust, which highlighted the levels of discrimination faced by black, minority, ethnic (BME) staff in schools, Luke Green, partner and head of schools at Hill Dickinson, explores the issue of discrimination in schools and offers some legal advice on how to minimise the liability risk

A pervasive culture of racism persists in schools according to a recent research report by the NASUWT and the Runnymede Trust. The report’s findings make startling reading; 31% of black, minority, ethnic (BME) teachers claim to have experienced discrimination in the workplace, 79% believed that they were not paid at a level ‘commensurate with their skills and experiences’, 70% did not feel they were treated fairly when applying for jobs or promotion and 75% are reported to be considering leaving the teaching profession.

If the report’s findings reflect reality schools could be sleepwalking into potentially unlimited liability for unlawful race discrimination. However, there are a lot of proactive steps that schools can take to minimise the risk and, in turn, create a healthy working environment for all members of staff.

Who is liable?

A school will be liable for its own unlawful acts of race discrimination, including direct discrimination – for example, failing to promote a teacher because they come from a BME background – and indirect discrimination – such as setting a test for promotion which BME candidates are, statistically, more likely to fail.

Schools can also be liable for acts of race discrimination committed by their staff or governors, unless they can prove they took ‘reasonable steps’ to prevent these; school staff and governors can also be personally liable for their own acts of harassment or discrimination.

How important are polices, training and monitoring?

The answer is, very! Every school should have an equal opportunities policy aimed at minimising the risk of discrimination and promoting equality. Schools should also provide staff training in equal opportunities so that every staff member understands the school’s approach to equal opportunities, what they can and can’t do and how to complain if they encounter discrimination. Monitoring recruitment/retention rates, and decisions regarding promotion and reward, can also help a school to identify areas in which it needs to improve.

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How should a school deal with a discrimination complaint?

Having an equal opportunities policy and training may go part of the way to proving that a school has taken ‘reasonable steps’ to prevent discrimination. In reality, though, how a school deals with discrimination complaints is probably the most important factor.

Such complaints should be taken seriously and investigated thoroughly as promptly as possible. There is often a reluctance to accept that discrimination has occurred, so try to take a step back and consider the situation from the perspective of an outsider. Be extra careful not to be seen to ostracise or punish the individual in any way for making a complaint about discrimination because that would be unlawful victimisation.

If the discrimination complaint is found to have merit, take appropriate action to deal with the issue. Depending on the circumstances, this may include taking disciplinary action against a harasser, or making changes to the school’s policies and procedures because, sometimes, all a victim wants is an apology and a promise to put things right.

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