Understanding the Equality Act 2010: EHRC updates its guidance for schools and colleges

The Equality and Human Rights Commission has updated its technical guidance on the Equality Act for schools and launched a consultation to obtain views on the changes it has made. 

The draft guidance is designed to explain the legal obligations schools have not discriminate against, harass or victimise pupils. Schools has a wide meaning and includes all schools including private or independent schools, special post-16 colleges and university technical colleges. And the guidance covers everything from admission policies, the education children receive and how schools' handle exclusions. There are three versions: one for English schools, one for Welsh schools and one for Scottish schools. 

What has changed? 

The EHRC has said that it has updated:  

• sections dealing with developments in the law relating to types of discrimination and protected characteristic groups

• its explanation about how the Act applies in different education settings and institutions like academies, special schools and school-based clubs

• the section clarifying the interaction between the Equality Act and other related laws; and

• how the Act applies in specific circumstances, for example where restraint, isolation and seclusion is used.

But it does not clearly set out which text is new. And the structure of the document has also changed so it's not easy to do a side by side comparison. To avoid you having to wade through the entire document, we've summarised the most significant changes or additions. 

Positive action (chapter 2)

The guidance makes it clear that schools can treat disabled pupils more favourably than non-disabled pupils and explicitly states this is not direct discrimination.

Chapter 8 expands on this. Provided you meet the statutory conditions for taking positive action set out in the Equality Act, you can take positive action to achieve equality of opportunity between disabled people with different impairments to i) overcome specific disadvantages, ii) meet differing needs or, iii) increase participation of pupils with one impairment compared to others with different impairments. 

The guidance also explains how schools can take positive action to support other under-represented groups such as taking steps to encourage girls to study predominately male-dominated subjects.

Religion and belief (chapter 3)

Information about religion and belief discrimination has been added. It refers to the Court of Appeal's decision in Higgs v Farmor's School and explains what you need to consider if you are thinking about dismissing a member of staff or disciplining a pupil because they have expressed their beliefs in a way you believe is objectionable. It provides a helpful example example to demonstrate how courts and tribunals determine whether you acted proportionately. 

Admissions (chapter 4) 

New guidance explains how you should collect information about protected characteristics. It says that you should not collect any information about prospective pupils that isn't directly relevant to the applicant (such as information abou their background or family) as this could lead to discrimination. 

Providing education and access to benefits, facilities and services (chapter 5)

A school's obligation not to discriminate against pupils relates to everything you provide - including school trips, tests and assessments, work experience and after school clubs.

The section dealing with behaviour has been significantly expanded. The guidance explains that behaviour policies can discriminate against pupils in two ways: i) by failing to consider whether the behaviour is caused by a protected characteristic - such as disability and ii) applying the policy in a discriminatory way by treating children differently without justification.

New sections dealing with restraint, isolation, removal and seclusion have been added. It recommends that you keep clear records of which pupils are removed, secluded or restrained and whether they have particular protected characteristics, such as SEN or disabilities. It also suggest that you monitor and analyse your use of these methods to consider whether they are affective. The guidance also refers to case-law which suggests that isolating pupils from each other can amount to a detriment and provides a useful example of a child with ADHD to demonstrate this.

The guidance includes a new section relevant to fee paying schools. It explains that it may be indirectly discriminatory on the grounds of race to charge higher rates to oversees pupils, unless the service you provide is different, such as providing long school terms or providing additional English language classes.  

Exclusions (chapter 6) 

The guidance makes it clear there is nothing in the relevant legislation and guidance about exclusions which conflicts with your duties under the Equality Act. When dealing with a disabled pupil you must make reasonable adjustments to your exclusion policy which might mean applying different sanctions to avoid putting a disabled pupil at a substantial disadvantage. 

The section dealing with disabled students has been expanded and includes advice where they have an EHC plan which names the school. 

Exceptions (chapter 10)

Significant additions have been made to this section to reflect the Supreme Court's judgment that, under the Equality Act, sex refers to biological sex . 

The guidance says that schools providing separate-sex accommodation for children to sleep, such as during residential trips must manage this in a way that is fair to both boys and girls. To do this they must consider:  

• whether it is reasonable to expand the provisions available or provide alternative accommodation
• how often pupils of each sex need overnight accommodation; and
• in relation to gender re-assignment, whether the arrangements in place are a proportionate means of achieving a legitimate aim

Providing this analysis is properly considered schools can make arrangements for separate-sex sleeping accommodation for pupils without being liable for sex discrimination or gender re-assignment discrimination.

A new section has been added addressing boarding and trans pupils. Existing regulations applying to children aged eight and older already prevent children of both sexes sharing sleeping accommodation. That means that trans pupils can not board in the same rooms as pupils of the opposite sex. 

The guidance says that in some situations it may be inappropriate for trans pupils to board with pupils of the same sex - but this must be considered on a case-by-case basis and meet legal tests. If you exclude a trans pupil from sharing sleeping and showering facilities aligned with their sex, you are likely to need to provide them with separate facilities.

A new section has been added about competitive sport. The guidance makes it clear that you will not breach the Equality Act if you make different arrangements for male and female sports or games where you are satisfied that an average pupil of one sex would be disadvantaged if competing against an average pupil of the opposite sex due to their physical strength, stamina or physique. 

Pupils protected under the gender reassignment characteristic are treated for this purpose as retaining their birth sex. They should not be included in single-sex or separate-sex competitions for the sex with which they identify. 

Do schools have to follow this guidance?

No, but once it's finalised, it can be used as evidence in legal proceedings. We therefore recommend that you consider what it says where it is relevant to the situation you are dealing with. If you want to take steps that contradict this guidance, please take advice. 

How can you respond?

The consultation is open until 30 September 2026. You can respond here.

 How we can help

 We have a team of education specialists who will help you navigate complex discrimination issues. Please contact Jenny Arrowsmith, our national head of education to find out how we can help your school or college. 

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