The recent outbreak of the war in Ukraine has led to an outpouring of support across the world and in the UK. Withers senior associate Emma Flower previously wrote about the impact of the war in Ukraine on the education sector, and the unique difficulties presented of supporting young people and their families at this time. Helping young people to understand and navigate difficult and upsetting world events can be a challenge, even for the most experienced educators.
It is not surprising that many educational establishments are choosing to publicly state their support for Ukraine. However, if they decide to show this support, in whatever form it takes, schools and colleges should be careful to ensure that they don’t inadvertently fall foul of the provisions of the Equality Act.
Educators will be aware that the Equality Act prohibits various forms of conduct, including discrimination, on the grounds of certain protected characteristics. One such characteristic is race, which encompasses colour, nationality and ethnic or national origins. Part 6 of the Equality Act specifically applies the provisions to education – maintained and independent schools, special schools, universities and other higher education institutions – and makes it clear that educational establishments must not discriminate against pupils/students – i.e. treat them less favourably than others – in a whole host of circumstances including:
- when deciding whether to admit them as a pupil and, if so, the terms on which they are admitted;
- the way education is provided to the pupil; and
- by not allowing access to certain benefits, facilities or services.
Simply stating public support for Ukraine, organising fundraising and supporting those affected by the war in Ukraine could not conceivably amount to breaches of the Equality Act. Where educational establishments may come into difficulty however is if they treat young people from Russia less favourably than other pupils or students on the grounds of them being Russian or having connections to Russia, an issue which many establishments will already be very alive to. Fee paying institutions in particular should also be alert to anything potentially discriminatory about how they approach payment of fees. For example, declining to offer financial support or breaks to a Russian family on the basis that they are Russian would likely be discriminatory, particularly if other pupils and families, such as those from Ukraine, were being given financial assistance.
However, the current situation presents some unique challenges. The introduction of sanctions against Russia will now mean that there are some cases in which Russians can be legitimately subjected to treatment that would otherwise be unlawful, for example in relation to the payment of fees. At the same time, there is a danger that in encouraging compassionate treatment towards Ukrainians, educational establishments may find that some students (or their families) interpret this as tantamount to license to show hostility towards Russians. Should the school, college or university involved allow such conduct to continue unchecked, it could potentially be acting unlawfully.
Education establishments must also take the same approach in relation to employees, workers and job applicants, as Part 5 of the Equality Act applies the protections in the context of work. Applicants should not be automatically excluded from shortlists on the basis that they are Russian, for example, and institutions should ensure that any harassment or victimisation of Russian staff is dealt with appropriately.
Establishments should therefore take care that the messages it sends out about the conflict are compliant with the Equality Act and that it is not only avoiding acting in a discriminatory manner itself, but also dealing with any poor conduct effectively.
The law around discrimination is complex and whether conduct amounts to discrimination can be fact specific. Nonetheless, those responsible for educational establishments should consider carefully whether their approach to this difficult issue is one which may leave them open to criticism and at risk of being on the receiving end of a costly, time-consuming claim.
If you have any queries, our Employment team will be happy to help. Please contact Eleanor Ashby or Hugh More.