Discrimination arising from disability: did a school discriminate against a pupil when it excluded her?

When the first-tier tribunal found that a school had discriminated against a pupil for excluding her, it fell to the upper tribunal on appeal in Mr and Mrs B v The Proprietor of St Dominic's Grammar School to consider if the legal test for a claim of discrimination arising from a disability had been applied correctly.

Facts

A five-year-old pupil, referred to as “B”, was excluded from school for one day and excluded from attending the after-school club because of multiple incidents of violent behaviour. Specifically, B kicked another child in the leg, scratched a child's face, grabbed a child by their dress and swung them around, slapped a child on the arm, and pulled a chair out from under a child. 

B has physical difficulties, specifically dyspraxia, which affects her coordination, spatial awareness, understanding of force, and ability to carry out tasks requiring precise hand movements. She also has social, emotional and mental health (SEMH) needs, particularly in recognising and expressing her own emotions, understanding the emotions of others, and needs support with social skills. 

B's parents argued that her behaviour was a consequence of her disabilities and brought a claim alleging that the school had discriminated against her.

The law 

A claim under section 15 of the Equality Act 2010 for discrimination arising from a disability, is made out when an individual with a disability is treated unfavourably because of something arising in consequence of that disability, and where the treatment is not justified as a proportionate means of achieving a legitimate aim. 

When bringing a disability discrimination claim, the claimant must show the tribunal that there is enough evidence to suggest discrimination may have occurred. If this is established, the burden of proof shifts to the respondent - in this case, the school - to demonstrate that the treatment was for reasons unrelated to the claimant's disability. This shifting burden of proof applies both to identifying the reason for the unfavourable treatment and to deciding whether that reason was linked to the disability. 

First-tier tribunal

The first-tier tribunal (health education and social care chamber - special educational needs and disability) found that B satisfied the definition of a disability under the Equality Act 2010: a physical or mental impairment that has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

There was no dispute that B's exclusion was unfavourable treatment. The tribunal then considered whether B's behaviour had arisen as a consequence of her disability and concluded that, in each instance, it had not. As a result, the claim was dismissed. 

Appeal to the upper tribunal

B's parents appealed on the grounds that the first-tier tribunal had failed to consider expert evidence and had not properly applied the shifting burden of proof.  

Expert evidence

The upper tribunal clarified that the question of whether B's behaviour was something arising in consequence of her disability is an objective one. It is not concerned with the decision-maker's reasons or motives. 

The first-tier tribunal includes at least one member with substantial experience of special educational needs and/or disability. It is therefore equipped to make determinations of this nature without expert evidence if necessary. However, the upper tribunal explained that where expert evidence is available, it must be taken into account.  

In this case, all five incidents involved B lashing out at other children. The first-tier tribunal had before it expert evidence explaining that B experienced social, emotional and mental health difficulties that led to her “lashing out at children, being easily aroused and becoming dysregulated.” Despite this, the first-tier tribunal stated there was “no evidence” linking B's behaviour to her disability and failed to refer to the expert evidence. This omission amounted to an error of law. 

The first-tier tribunal almost exclusively focused on the subjective reasons why B, her parents, or the school believed she acted as she did. In doing so, it misdirected itself. The upper tribunal found that the correct approach is to determine, objectively, whether B's behaviour was causally connected to her disability. 

Shifting burden of proof

Given the expert evidence available, B's parents argued that it was perverse for the first-tier tribunal to conclude that B had not satisfied the primary burden of proof. They believed the burden should have shifted to the school to try to demonstrate the treatment was for reasons unrelated to her disability. The upper tribunal found that the first-tier tribunal failed to direct itself on this shifting burden of proof. That was an error of law and it set aside the judgment.  

Although the upper tribunal found it hard to see how a properly directed tribunal could conclude that the burden of proof hadn't shifted, it accepted that (if the law is correctly applied and all relevant evidence considered) a tribunal might still find no causal link in some aspects of B's behaviour. It therefore remitted the case was back to the first-tier tribunal to determine. 

Key takeaway points

The Equality Act 2010 is interpreted in the same way across both education and employment contexts. This case therefore offers valuable guidance on how to approach disability discrimination claims in either setting. 

As this case demonstrates, a key challenge lies in establishing whether there is a link between a person's disability and their behaviour, particularly when the connection is not immediately obvious. Importantly, to establish liability, the law requires the respondent - in this case, the school - to have knowledge of the disability, but not to know that the behaviour leading to the unfavourable treatment was a consequence of that disability. This means you can find yourself liable even when you are unaware of the link. 

Given this, it is essential to consider the possibility of a connection between an individual's disability and their behaviour when you are contemplating taking action in response to that behaviour. Where appropriate, seek professional medical advice to gain a clearer understanding of the nature of the impairment and its potential impact. This should be done before making any decisions that could result in unfavourable treatment of the individual concerned.

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