A recent decision by the Upper Tribunal has confirmed something many schools may not have fully appreciated: your duties under the Equality Act 2010 extend into your behaviour policy, your sanctions and even your decision to exclude a pupil.

The background

The case, UW v Cheam Academies Network, involved a 13-year-old boy with autism and ADHD who had an Education, Health and Care Plan. The claims arose from 41 detentions, a series of fixed-term exclusions and, ultimately, a permanent exclusion. His mother argued that the school had failed to make reasonable adjustments to its behaviour policy.

The First-tier Tribunal initially refused to consider that part of the claim, concluding that the duty to make reasonable adjustments did not apply to disciplinary decisions. The Upper Tribunal disagreed.

What the law actually requires

Under the Equality Act 2010, schools must make "reasonable adjustments" for disabled pupils. If a school's practice, policy or rule puts disabled pupils at a significant disadvantage compared to their non-disabled peers, the school must take reasonable steps to remove that disadvantage.

The Upper Tribunal held that this duty applies to a school's behaviour policy and its application, including sanctions up to and including permanent exclusion. The Tribunal went further: the duty applies to the exclusion decision itself, because exclusion is a decision not to provide education and to remove the pupil from the benefit of attending school.

In short, the duty to make reasonable adjustments covers the full disciplinary process - from the support you provide, to the application of your behaviour policy, through individual sanctions, to the decision to exclude.

What this means in practice

1. Review your behaviour policy

If your policy applies the same rules and sanctions to all pupils without flexibility for those with disabilities, it may not meet the required standard. Your policy should make clear that adjustments will be considered for disabled pupils.

2. Think about adjustments at every stage

Before issuing a detention, fixed-term exclusion or permanent exclusion to a pupil with a disability, staff should actively consider:

• Is this pupil's behaviour connected to their disability?
• Has the school taken reasonable steps to support the pupil in meeting expected standards?
• Is there a reasonable adjustment - a different sanction, alternative provision, or additional support - that could avoid the need for this sanction? 

The emphasis here is on reasonable adjustments - if an adjustment wouldn’t be reasonable, you don’t have to make it. However, if a case reaches a Tribunal, you'll need to demonstrate that adjustments were genuinely considered, not simply asserted after the event. We've seen a significant increase in disability discrimination claims in recent years, and most include a sanction that has been issued.

3. Involve your SENCO early

Your SENCO should be involved in any disciplinary process involving a pupil with a disability, particularly before any exclusion is considered. They are best placed to advise on what adjustments are reasonable and proportionate.

A word of reassurance

If you do receive a claim, our education team has extensive experience in disability discrimination cases before the Tribunal. We'd recommend seeking early advice on these issues to make sure your approach is sound.

Making reasonable adjustments doesn't mean treating disabled pupils as exempt from all rules. The law doesn't require the impossible. It requires schools to think carefully and act fairly. What this ruling makes clear is that your behaviour policy and exclusion decisions are not outside the reach of equality law.

Further support: Keeping your policies up to date and compliant

Our Policies Pack includes over 40 education and HR policy templates, including behaviour and exclusions and suspensions policies, drafted to reflect current legislation and case law. The pack is updated annually ahead of each academic year, and where significant changes occur mid-year, revised templates and practical guidance are provided to subscribers. 

For trusts looking to ensure their behaviour and exclusion policies properly account for reasonable adjustment duties, it offers a straightforward way to stay compliant without the burden of tracking every legal development yourself.