Schools which send home pupils with special needs during teaching assistant strikes could face a legal challenge, a charity has threatened.
The TES has learned that some Brighton and Hove secondaries managed to stay open during teaching assistant pay strikes in November and December, but asked particular pupils with special educational needs (SEN) to stay at home.
The schools had been advised by the local education authority to carry out risk assessments working out how many pupils "could not be managed" without assistants.
Now the Independent Panel for Special Educational Advice (IPSEA), a national charity giving advice on the SEN pupils' legal entitlements, is offering its services to parents who want to challenge the policy.
John Wright, IPSEA's chief executive, said: "It is likely that the schools are acting in breach of disability discrimination law. They are also likely to be breaching their duties under SEN law.
Schools are placed in a difficult position when staff strike but it is not appropriate for them to struggle through by discriminating against the pupils who have the biggest educational need."
Schools should close completely, double up classes or send children home according to a strict rota, which did not discriminate against particular groups of pupils, he said.
A Disability Rights Commission spokeswoman said it would be concerned at any blanket policy adopted by schools which involved sending home children who needed support.
The news came as strikes planned for next week were put on hold, with support staff unions Unison and GMB accepting the council's offer of exploratory talks with the conciliation service, ACAS, due to take place yesterday.
But if these break down Unison has voted for an escalation of the dispute, which could result in five-day strikes in some schools.
The authority's advice to schools on the action asks them to consider:
"Could it be legitimate to ask a small number of children to stay at home? What different risks would there be to the child? (apart from inequality of treatment)."
It says that it assumes that special schools cannot function without teaching assistants. In last year's strikes all seven special schools in the city closed, along with around 30 primaries. Secondaries remained open, but some sent particular pupils home.
Neil Hunter, head of Blatchington Mill school, Hove, said around 20 pupils with special needs had been asked not to attend. He said: "Say it was a physical disability and that person needed one-to-one support during the school day, then it would not be fair for that pupil and the remainder of the school for that pupil to come into school." He said parents had been supportive and understanding.
Margaret Morrissey, from the National Confederation of Parent Teacher Associations, said she understood the schools' position but said it was "extremely difficult" for parents who had jobs or needed respite from caring for their children.
David Hawker, director of children, families and schools for Brighton and Hove council, said: "It is not a discriminatory act at all. It is simply headteachers carrying out a risk assessment about an individual child."