[2023] UKUT 311 (AAC)

The issue of discrimination arising from disability hinged on the determination of objective justification.

The Appellant’s response to the initial claim cited two categories of legitimate aims;

“a.

To protect the health, safety and welfare of A, staff and other pupils

b.

To maintain the robust Behaviour Policy and structures and systems required in a school of this nature, to alleviate health and safety risks arising from behaviours, associated with complex disabilities”.

The case management order made ‘on the papers’ dated 28March 2022 identified the issues in a general sense and then confirmed that if there was unfavourable treatment arising in consequence of A’s disability, the Responsible Body will have discriminated unless it can show that its treatment was a proportionate means of achieving a legitimate aim “such as ensuring the health and safety of its staff and pupils”.

The objective justification arguments set out by the Tribunal in its written reasons under the summary of the claim do not identify the legitimate aims relied upon. However, it sets out the Appellant’s arguments at paragraph 20 of the decision in which the Appellant’s justification defence is recorded as being: “A’s safety and the safety of others could not be guaranteed”.

In its conclusions, under the heading ‘proportionality’ at paragraph 32, the Tribunal states: “The RB argued that the legitimate aims pursued were the protection of A’s health, safety and welfare and the maintenance of the behaviour policy to alleviate health and safety risks”. At paragraph 33 the Tribunal states: “We considered the point very carefully and found that the aims being pursued were legitimate. By this stage, A’s welfare, health and safety were clearly a significant issue. We also accept that there had been an escalation of A’s behaviour to such an extent that he was at stage 4 of the school’s behaviour policy”.

Whilst the aims were not addressed separately by the Tribunal as set out in the Appellant’s Response, the final formulation as set out in paragraph 32 of the decision sufficiently covered the points as raised by the Respondent. The maintenance of the Behaviour Policy to alleviate health and safety risks includes alleviating health and safety risks to A, the staff and pupils. It does not amount to an error of law by the Tribunal to frame the aims as it did.