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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
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 element of objective justification has no proper focus in respect of which the required balancing exercise can be undertaken. It may be that the Tribunal was accepting, in the alternative, that all DJ’s behaviours were arising from his disability, or that no matter what the behaviours arising were, the justification analysis would hypothetically address them all. The decision is not clear in that respect.
I agree with the Respondent that exclusion is a serious step but that does not address the effect of the discrimination on the Appellant himself and provide a critical assessment of the proportionality between the discriminatory effect of the exclusion and the need for the Respondent to proceed in the way that it did.
- 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