[2024] UKUT 449 (AAC)

Section 15 of the Equality Act 2010 provides:

“(1)

A person (A) discriminates against a disabled person (B) if -

(a)

A treats B unfavourably because of something arising in consequence of B's disability, and

(b)

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2)

Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”.

In its decision, under the heading “Disability”, the Tribunal set out its conclusion on whether or not DJ’s behaviours leading to the decision to require him to be withdrawn from the College arose as a consequence of his disability:

“30.

It is not an issue that [DJ] was disabled within the meaning of the EA 2010 because of ADHD. We have carefully considered the evidence of Dr Hymans but using our own expertise, we are not satisfied that all of [DJ]’s behaviours which are relevant to this claim were the consequence of his ADHD. It is possible that the condition and medication were, in part, the cause of some sleep problems but given the general history of [DJ]’s behaviours in school we do not accept that ADHD was the only or major cause of [DJ]’s behaviours or missing lessons. For example the letter from Oxford Centre in February 2021 (page 153 in the bundle) stated sleep was better.

31.

In our judgement it is far more likely that [DJ] was finding the academic and discipline demands of the college too difficult, and he lost interest in his studies. The incident when he went home to attend a party, having said that he was unwell, shows a degree of determination to get his own way and avoid the consequences of his actions if he could.

32.

We are satisfied that the incidents which occurred before the start of the sixth form involving serious breaches of the school discipline policy are relevant to demonstrate [DJ]’s, at times, unthinking behaviours towards others and a determination to vape. The second vaping incident described by Ms Brown occurred shortly after the beginning of the new term and we find that [DJ]’s conduct, taken as a whole, is not consistent only with the effects of ADHD as described by Dr Hymans.

33.

Therefore, we are not satisfied that [DJ]’s behaviours did arise from his disability, and we would dismiss the claim for that reason”.

The Appellant argues simply that the Tribunal fell into error in stating that it did not accept that “ADHD was the only or major cause of [DJ]’s behaviours or missing lessons”.