DEMOS Project - Module: SENDA

Disclosure and Confidentiality

A landmark decision by the Courts under Part 2 DDA (employment) was the case of HJ Heinz Co Ltd vs. Kenrick (2000). The court found in favour of the employee as he had been treated less favourably because of his disability even though the employer had no direct knowledge of his disability ^[1]. Essentially, the employer had not taken reasonable steps to find out about the employee's disability.

Can I be guilty of discrimination even if I didn't know someone is disabled?

Under the DDA, for a responsible body to discriminate against a disabled student, they must know that a student is disabled. The law says that if a responsible body does not know or could not reasonably have known that a student was disabled, discrimination cannot take place.

However, in practice, this means that institutions must take reasonable steps to find out if a student is disabled in order to demonstrate that 'they could not reasonably know'.

In general, it is in a student's best interests to disclose their disability as they will receive more support and staff will better understand their needs if they do. For example, reasonable adjustments can be made to teaching, learning or their exams.

N.B. You may find that as part of your institution's anticipatory duty, some reasonable adjustments have already been made as a matter of course and some students do not need to tell the institution that they are disabled.

When does my institution 'know' that a student is disabled?

Even when a disabled student tells just one student in the institution, it is then deemed to know about the disability, unless the student requests confidentiality.

Example

A student declares a disability on her application form to the University but does not receive any support or adaptations when she is enrolled. The failure to offer her the necessary adaptations is then likely to be unlawful.

Example

An applicant does not declare his disability on his application form, but phones up to confirm his selection interview using the university's Textphone line. The responsible body may then be deemed to have known that he had a disability (i.e. he was deaf or hearing impaired) given that he used Textphone.

How do I find out if a student is disabled?

You must take reasonable steps to ensure that you find out about a student's disability. These reasonable steps may include asking:

during the admissions process.
at exam registration.
at accommodation registration.
when using a service for the first time (e.g. careers, library).
when registering at the beginning of each year.

Disabled students are not always happy to disclose disability for various reasons. However, students are more likely to identify themselves as being disabled if there is an open and honest culture about disability in the institution. This may include being able to disclose in a confidential setting or reassurance that the information will be treated appropriately. Asking all disabled students to put their hands up in the first lecture of the year would not be considered reasonable!

You can refer to the DfES Guide 'Finding out about People's Disabilities' (http://www.lifelonglearning.co.uk/ ) for more information.

What do I need to do if I find out a student is disabled?

Disclosure Policy

Institutions should have in place procedures (often called a disclosure policy) for what you should do once you find out that one of your students is disabled.

A typical procedure will cover:

who needs to know and when.
what will happen once a student has disclosed.
how this information will be passed on to the appropriate people (disability is considered 'sensitive personal data' under the Data Protection Act and must be processed accordingly).

It is important that you are aware of your institution's disclosure policy. If your institution does not have one and a student tells you that they are disabled, you should talk to your institution's disability officer (with the student's permission) about what steps to take next.

What happens if a student is disabled but they don't want anyone to know?

Confidentiality

It is the student's right to decide whether or not they want to tell the institution that they are disabled. Some students will not disclose during the admissions process for fear of discrimination, but once they have started the course, will then decide that they need additional support.

If a disabled student does not disclose their disability and the institution has taken reasonable steps to find out, then it is likely that few reasonable adjustments can be made. It may be that a disabled student benefits from the anticipatory nature of your reasonable adjustments in any case - for example if you post your handouts on the intranet for the benefit of your visually impaired students, other students may download them and use them without having to tell you about their specific disabilities.

However, there may be situations where a disabled student tells you in confidence that they have a disability. In these cases, you will not be able to pass that information on to the appropriate person. If a disabled student requests confidentiality, it means that there may be either a less satisfactory reasonable adjustment or no adjustment at all. This should be explained to the student at the time.

Example

The visually impaired student in the previous example may tell you that about their disability but, as they can download your handouts from the intranet, they do not want anyone else to know about their disability. You should explain that you will keep this information confidential but that other reasonable adjustments may not be made - for example there may be times that they could benefit from having a note taker in class with them if they told the Disability Office and arranged this with them.

What about the Data Protection Act?

To comply with both the Disability Discrimination Act and the Data Protection Act, you should ensure that when a student identifies themselves as being disabled you should:

ask their permission to pass on the information necessary to make reasonable adjustments.
inform them of the procedures that are in place to keep sensitive and other personal information confidential.

References:

[1] From 'Monitoring the Disability Discrimination Act 1995',
[PDF file: http://www.incomesdata.co.uk/brief/dda/2reportb.pdf ]
IDS Ltd (2000), HMSO.

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