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DJ and his mother signed the agreement
DJ and his mother signed the agreement.
A letter from the College dated 12 October 2021 stated that DJ was not to be allowed to return to the college following multiple breaches of the performance agreement. DJ’s mother was informed that if the College did not receive confirmation by 15 October 2021 of her intention to remove him from the College, he would be permanently excluded on the grounds of repeated breaches of the performance contract following a final written warning. As a result, DJ’s mother withdrew DJ from the College.
At the time of the hearing the College had an established special educational needs policy. The staff were experienced in helping students with SEN. The College had over a thousand students of which 86 had a diagnosis of ADHD and 7 were autistic individuals. The College aims for all pupils to achieve high academic standards.
The College staff believed that DJ’s negative reaction to the support offered and his continuing failure to produce satisfactory work on time demonstrated that he did not want to engage appropriately with his education.
In September 2020, it is alleged that DJ was found to have ‘vaping’ equipment in his room. In November 2020 a complaint was made by two female pupils that DJ had been part of a group of boys subjecting them to racist and sexist harassment. In March 2021, it is said that DJ had behaved aggressively towards the pupils who had complained about his conduct. Other reported incidents were where DJ had overslept and missed tutorials and support sessions.
The College argued that the decision not to allow DJ to proceed with his sixth form studies was made when it became obvious that he had no interest in engaging with those studies or the help offered and would have struggled to catch up with work he had missed.
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 20 February 2023 under number EH8672200013 was made in error of law. Under section 12(2) (a)
- REASONS FOR DECISION
- Background Summary
- After the incident DJ had a decline in his mental health and demonstrated symptoms associated with post-traumatic stress disorder
- DJ and his mother signed the agreement
- The case put to the First-tier Tribunal
- The First-tier Tribunal’s decision and reasons At paragraphs 19 to 28 of its decision the Tribunal set out a summary of the evidence
- Proceedings before the Upper Tribunal
- The grounds of appeal advanced at the appeal hearing were
- Section 15 of the Equality Act 2010 provides
- The Appellant replies upon Hall -v- Chief Constable of West Yorkshire [2015] IRLR 893, as confirmed in Risby -v- London Borough of Waltham Forest UKEAT/0318/15 in which the Employment Appeal Tribunal
- The Appellant argued that the error displayed by the First-tier Tribunal by its reference to ‘only or major cause’ followed the same error identified in Hall and Risby
- The principle contained in the decisions in Hall and Risby was also confirmed in Pnaiser -v- NHS England and Anor [2016] IRLR 170. After considering a number of authorities including IPC Media Ltd -v
- I have considered, as I must, the Tribunal’s conclusions in the context of the decision as a whole and also remind myself of well-established authorities on adequacy of reasons as highlighted under Gr
- I consider that any room for doubt is removed by paragraph 32 where the Tribunal confirms its view that “we find that [DJ]’s conduct, taken as a whole, is not consistent only with the effects of ADHD
- However, it is my conclusion that it was a misdirection
- The applicable approach is summarised in the Supreme Court decision in Aster Communities Ltd -v- Akerman-Livingstone [2015] UKSC 15 (see para. 28)
- The Appellant argues that the Tribunal failed to engage with the fourth element of the guidance in Ackerman-Livingstone and relies on the Employment Appeal Tribunal authority of Secretary of State for
- The Appellant cites the decision in Prospere where the EAT states
- As part of its decision the Supreme Court in Ackerman-Livingstone confirmed that: “the role of the Court is not akin to judicial review. It has to undertake the proportionality exercise itself” (para
- The difficulty with the Tribunal’s alternative approach is that in the absence of making any finding on what constituted the something arising in consequence of DJ’s disability, the proportionality el
- In MacCulloch -v- ICI [2008] IRLR 846 the EAT set out legal principles with regard to justification, which have since been approved by the Court of Appeal in Lockwood -v- DWP [2013] EWCA Civ. 1195 . F
- The Tribunal in this case did not undertake that review. I recognise that there may be some tension between the Tribunal adopting the four stage process with the ‘critical review’ as anticipated by Ac
- It is an assessment of the decision as against the legitimate aim rather than balanced consideration of the discriminatory effect on the Claimant against the legitimate aim. What is missing from the T
- This ground of appeal is successful Ground 2
- The detriment was clearly DJ’s inability to comply with the terms of the agreement and ultimate removal from College The Tribunal did engage with the expert evidence of Dr Hymans as paragraphs 21 and 22 show
- The Tribunal did not set out in its decision its conclusions about individual elements of Dr Hymans’ report. In my view it was not required and there was no error of law in that respect. The Tribunal
- Conclusions