What is the duty to avoid disability discrimination in exclusions?

When excluding a disabled pupil, the Equality Act 2010 makes discrimination unlawful: the head must make reasonable adjustments, ask if the behaviour stemmed from the disability, and keep the sanction proportionate.

What the duty actually requires

The Department for Education's suspension and permanent exclusion statutory guidance (the August 2024 version, in force at June 2026) is explicit that a headteacher must comply with the school's Equality Act 2010 duties when deciding whether to exclude. A pupil is disabled under the Act if they have a physical or mental impairment with a substantial, long-term adverse effect on normal day-to-day activities (section 6). That definition is engaged by the impairment itself — not by a diagnosis or an EHCP — so a pupil can be disabled in law before anything is formally written down.

The three forms of discrimination that bite in exclusions

• Direct discrimination (section 13): treating a disabled pupil less favourably than others because of their disability. This cannot be justified.
• Discrimination arising from disability (section 15): treating a pupil unfavourably because of something that arises from their disability — for example, behaviour that is a manifestation of the disability. This is the form that most often arises in exclusions. It is unlawful unless the school can show the treatment is a proportionate means of achieving a legitimate aim.
• Failure to make reasonable adjustments (sections 20–21): this duty is anticipatory. As the Equality and Human Rights Commission's technical guidance sets out, schools must think ahead about how their behaviour and exclusions policy could put disabled pupils at a substantial disadvantage, and adjust it so they are not.

The duty does not mean you can never exclude

This is the qualifier most pages miss. The duty does not prohibit excluding a disabled pupil. It requires the head to make reasonable adjustments to the behaviour policy, ask whether the behaviour was a manifestation of the disability, impose a proportionate sanction, and be able to justify any unfavourable treatment as a proportionate means of achieving a legitimate aim — and the safety of other pupils and staff can be a legitimate aim. An exclusion remains lawful where these duties are met.

Section 15 carries a knowledge defence: there is no liability for discrimination arising from disability if the school neither knew nor could reasonably have been expected to know the pupil was disabled. But “we did not know they were disabled” is not a complete answer. The defence turns on what the school could reasonably have been expected to know, and the anticipatory reasonable-adjustments duty is owed to disabled pupils generally — it is not subject to a knowledge defence at all.

If a parent challenges the exclusion

A disabled pupil's parent who believes an exclusion was discriminatory can bring a disability discrimination claim to the First-tier Tribunal (SEND), as the GOV.UK SEND4 guide explains. The claim must generally be brought within six months of the act complained of. The Tribunal can order remedies such as a written apology, staff training, or that the school reviews its policy.

This page is general information, not clinical or legal advice.