Important: facts and policies dictate discrimination cases

Two discrimination cases in the schools context have caught our attention in the last few weeks.

ADHD and disability

The first was in the Scottish Court of Session and confirmed that, in that particular case, a pupil's Attention Deficit Hyperactivity Disorder (ADHD) did not amount to a disability under the Equality Act 2010 (the Act). In this particular case, had the pupil been deemed to have been suffering from a disability, her exclusion and withdrawal from school could have been unlawful.

The background here was that the pupil was caught having sexual relations with a male student in the school.  This resulted in her exclusion and her parents being advised to withdraw her from school to avoid an expulsion on her record.  The pupil's parents appealed against the decision stating that she was disabled for the purposes of the Act because of her ADHD and its negative effect on her decision making.  The court determined that she was not disabled under the Act as her mental impairment did not have a substantial and long term adverse effect on her ability to carry out day to day activities (based on the evidence of her teachers).  Further there was no causal link between the ADHD and the act resulting in her expulsion (based on evidence that planning had been involved and that there had been previous incidents of this sort which the pupil's parents did not attribute to her ADHD).

The case demonstrates the importance of the test of "disability" under the Act and, the importance of there being a connection between the disability and the act in question.  On this basis it is clear to see that every case will turn on its own facts.  [JC v Gordonstoun Schools Limited [2016]]

Gross Misconduct

The second case, involving a teacher, was heard in the Employment Appeal Tribunal (EAT). The teacher in question (P) was married to a head teacher at another school who was convicted of downloading indecent images of children and voyeurism.  There was no suggestion at all that P was aware of her husband’s activities P was nonetheless warned that, if she stayed with her husband, she would not be able to return to her place of work.  She refused to leave him and so was subject to disciplinary action the charge being gross misconduct as a result of an erosion of trust and confidence in her ability to carry out safeguarding responsibilities as a teacher.  P's view was that she was a separate person to her husband, had an exemplary track record in safeguarding, had done nothing wrong, did not present a risk and her decision had been made in light of her marriage vows, specifically her commitment in the presence of God for better or worse.  The school failed to provide her with any evidence of the concerns they stated had been raised by parents and failed to respond when she asked if she was being expected to choose between her marriage vows and her career.

When her husband commenced a prison sentence, P was dismissed for having chosen to maintain a relationship with her husband, which the employer believed had eroded her suitability to carry out the safeguarding responsibilities of her role.  The choices she had made in her personal life were considered to be in direct contravention to the ethos of the school.  P's position was that she held a belief that her marriage was sacrosanct having been made to God and being an expression of her religious faith.

P brought a claim in the ET that she had suffered religious discrimination as the policy which had been applied, namely dismissing those who choose not to end a relationship with a person convicted of making indecent images of children and voyeurism, placed someone with her religious beliefs at a particular disadvantage.   The ET dismissed P’s claim.

P then appealed to the EAT.  The EAT held that P had suffered indirect religion or belief discrimination.  The EAT held that the response to an unusual situation, even a first response, can constitute a policy or practice.  Further, for the purposes of the Act those who believe in the sanctity of their marriage vows made before God would suffer a particular disadvantage (in relation to those who did not) by the application of a policy or practice of this kind.

This case acts as a reminder of the importance of considering the impact policies and procedures implemented in schools have on various protected groups and in considering the surrounding circumstances in any proposed disciplinary action.  [Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School [2016]]

For more information, help or advice please contact Jill Donabie on 0191 211 7919 or email [email protected].