Here you’ll find advice on disability discrimination for parents of autistic children in a primary, secondary or local authority nursery school in Scotland. 
 
Because we’re talking about legislation we’ll sometimes use ‘disabled’ as a general term that includes autism.
 

What does ‘disability’ mean? 

The Equality Act 2010 (section 6) says that a pupil has a disability if he or she has a physical or mental impairment that has a long-term and substantial adverse effect on his or her ability to carry out normal day-to-day activities. 
 
‘Mental impairments’ include autism, a lifelong disability that affects how people perceive the world and interact with others. Most autistic people are likely to fit this description, but someone doesn’t have to have a diagnosis to be considered disabled.
 

What does the Equality Act cover? 

A school must not discriminate against a disabled pupil in relation to: 

• admissions 
• how education is provided 
• exclusion 
• any other disadvantage or denial of opportunity or choice. 

How education is provided includes: 

• school activities, such as extra-curricular and leisure activities, afterschool and homework clubs, sports activities and school trips 
• assessments and internal exams 
• managing behaviour and discipline 
• school facilities, including libraries and IT. 

Schools have responsibility towards disabled pupils for internal exams. It’s also unlawful for general qualification bodies (GQBs) to discriminate against pupils taking formal examinations. Autistic pupils can be supported with exams in various ways, such as additional time, having someone to write for them or assistive technology. 
 
You can read more about this in our exam guidance.
 

What types of discrimination are there? 

There are a few different types of disability discrimination that your child may experience at school. They are: 

• direct disability discrimination 
• indirect disability discrimination 
• discrimination arising from disability 
• a failure to make reasonable adjustments 
• harassment and victimisation 

We’ll now look at each of those, one by one, in a bit more detail.
 

Direct disability discrimination 

Direct disability discrimination is when someone is treated less favourably than others because of their disability. 
 
Example: 

An autistic pupil is excluded from a school trip because the school doesn’t think they’ll be able to join in the activities. 

Direct discrimination is always unlawful. However, some schools, such as grammar schools, are allowed to select pupils based on ability or aptitude, if they make reasonable adjustments for disabled pupils during the assessment process. 

If a school treats a pupil less favourably because they mistakenly think the student has a disability, that’s called direct disability discrimination by perception. Also, if a pupil is treated less favourably because they’re friends with a disabled person, that’s known as direct disability discrimination by association.
 

Indirect disability discrimination 

Indirect disability discrimination is when a school policy or practice is applied in the same way to everyone but puts a disabled pupil at a disadvantage. That is unless the school didn’t know the pupil had a disability, or it can be justified as being a ‘proportionate means of achieving a legitimate aim’. We’ll explain what this means in a bit more detail in the next section. 
 
Example: 
 
A school has a policy that if a pupil breaks the school rules three times, they’re automatically given a fixed-period exclusion. Autistic pupils may break rules without realising it, or because they’re anxious or stressed if their needs aren’t being met. Applying this ‘blanket’ or ’zero tolerance’ policy without any flexibility is probably indirect disability discrimination.
 

Discrimination arising from disability 

If a pupil is treated unfavourably because of something connected to their disability, it’s discrimination arising from disability. 
 
Again, that’s unless the school didn’t know the pupil had a disability, or it can be justified as being a ‘proportionate means of achieving a legitimate aim’. 
 
A ‘legitimate aim’ might be to ensure the safety of pupils and staff. However, the school would also need to show that their response was proportionate. As exclusion can lead to social isolation, increased anxiety, and depression, parents might argue that a more proportionate response would be to: 

• have a better understanding of autism 
• be empathetic 
• ensure that the child’s needs are met 
• provide appropriate support 
• work on reducing their anxieties 
• implement effective strategies and approaches 
• make reasonable adjustments for the pupil. 

Example 1: 

An autistic pupil is excluded for flapping his arms at a supply teacher. The teacher was alarmed by what he perceived to be threatening behaviour. The pupil was distressed and had flapped his arms because the supply teacher had told him that they were doing an activity which meant he could not sit in his usual seat. 
 
Since the pupil’s reaction was connected to being autistic, the exclusion would be discrimination arising from disability. The school had not advised the supply teacher of the reasonable adjustment (allowing the pupil to always sit in the same seat), so they would be unlikely to be able to justify the discrimination and therefore it would be unlawful. 
 
An exclusion is unlikely to be justified in circumstances in which a school has not complied with its duty to make reasonable adjustments for that pupil. 
 
Example 2: 
 
An autistic pupil is only allowed to attend school part-time because the school doesn't have the resources to provide the full-time support he requires. This would be discrimination arising from disability, unless it can be justified.
 

A failure to make reasonable adjustments 

Reasonable adjustments are changes that a school must make so disabled pupils can participate in their education and enjoy the other facilities the school offers. 
 
Schools have a duty to make reasonable adjustments so that disabled pupils aren’t at a substantial disadvantage compared to non-disabled pupils. 
 
In the Equality Act 2010 as a whole, there are three elements that reasonable adjustments apply to: 

• provisions, criteria and practices – the way in which a school operates on a daily basis, for example an exclusion or discipline policy 
• physical features, like entrances and exits, toilets, lighting, flooring and furniture 
• auxiliary aids and services, like supportive equipment or a member of staff. 

However, the physical features element does not apply to schools. Instead, they have a duty to plan better access for disabled pupils generally, including in relation to the physical environment of the school. You can ask for a copy of your school’s accessibility plan to find out more. 
 
Examples of reasonable adjustments for your child might be to allow them to: 

• wear ear defenders or a slightly different piece of uniform to accommodate sensory sensitivities 
• start and finish lessons at slightly different times so that your child can avoid busy and crowded corridors 
• have support, or make alternative arrangements, for assemblies, school plays and sports days 
• have access to a ‘quiet’ area or separate work station 
• arrange support so your child can take part in school trips. 

There may be many other adjustments that need to be made for your child. It’s unlawful for a school to charge you for making a reasonable adjustment. For example, if a school suggests the reasonable adjustment of asking you, as a parent, to support your child on a school trip to a museum, it should not expect you to pay for your travel and admission. 
 
When it comes to reasonable adjustments, schools should consider: 

• if your child is at a substantial disadvantage, such as falling behind with school work 
• if this disadvantage could be avoided, for example by one-to-one support or specialist teaching 
• if it’s reasonable to take these steps. 

The term ‘reasonable’ is not defined in the Equality Act, but things that are likely to be taken into account are: 

• the extent to which the disadvantage would be overcome 
• how much support your child gets through special educational needs (SEN) or additional support needs (ASN) legislation 
• the school’s resources, and the costs and practicality of making the adjustment 
• how much your child will suffer if the reasonable adjustment is not made 
• health and safety requirements 
• the need to maintain academic and other standards 
• interests of other pupils and prospective pupils. 

A recent tribunal ruling means that schools and colleges must have made appropriate reasonable adjustments for autistic or disabled pupils, aged under 18, before they can exclude them. 
 
Previously, a loophole in the Equality Act meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse', even when that was caused by a lack of appropriate support. 
 
However, this loophole has been closed and allowances should be made for behaviour that’s due to a student’s autism and their needs not being met. Schools need to make reasonable adjustments so that students can fully participate in their education.
 

Harassment and victimisation 

If you’ve made a complaint or allegation of discrimination against a school and they treat you unfairly as a result, this is unlawful victimisation. This also applies if the school treats your child, or anyone else who helped with the complaint, unfairly (subjects them to a detriment). 
 
Harassment is any behaviour, by school staff, that’s related to a pupil’s disability and has the purpose or effect of: 

• violating their dignity, or 
• creating an intimidating, hostile, degrading, humiliating or offensive environment for them. 

It is not necessary for the pupil to say that he or she objects to the behaviour for it to be unwanted. 
 
For example, a teaching assistant makes comments in class about an autistic pupil getting away with doing no work and acting like a spoilt child. This is likely to amount to harassment if it’s found that the comments and language create a humiliating or offensive environment for the child.
 

Disability and Additional Support Needs (ASN) 

Some disabled pupils may also have ASN, and similarly a child may have an ASN, but not be disabled, according to the Equality Act. The school’s disability discrimination duties aren’t meant to replace those which provide extra help in school. They should work alongside each other so pupils are supported when necessary. 
 
For impartial and confidential information and support with your school education rights and entitlements, try our Education Rights Service.
 

What can I do if my child’s been discriminated against? 

If you think your child has been discriminated against, you can: 

• ask to discuss the situation with the headteacher 
• contact the Local Authority 
• ask to see, and then follow, the school’s written complaints procedure 
• contact the Equality Advisory and Support Service 
• make a claim for unlawful discrimination  

You can make a claim to the First-tier Tribunal for Scotland Health and Education Chamber (Additional Support Needs). 
 
A tribunal can order various remedies, including: 

• a letter of apology 
• staff training 
• changes to policies and procedures 
• additional education for a pupil who’s missed some learning 
• an additional school trip for a pupil who has missed out.
   

Further help 

Our Education Rights Service can help you secure an appropriate education for your child.
 

Useful reading 

Technical Guidance for Schools in Scotland - Equality and Human Rights Commission.