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This ground of appeal is successful Ground 2
This ground of appeal is successful.
Ground 2
The Ground: Misapplication of section of the 20 Equality Act 2010.
The part of section 20 of the Equality Act 2010 relevant to this appeal provides a requirement on a person for whom the duty to make a reasonable adjustment is imposed:
“. . . where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.
The Appellant argues that the Tribunal did not make a clear decision on the applicable provision, criterion or practice (“PCP”) from which the analysis of whether a reasonable adjustment duty has been breached could flow. It is also argued that there was no engagement with the expert evidence of Dr Hymans and the Tribunal failed to address the anticipatory and continuing nature of the reasonable adjustment duty. Therefore the finding that the Responsible Body left it too late to refer the Appellant for an ECHNA is not a defence, but confirms a breach of the anticipatory duty of section 20. Finally the Appellant argues that the Tribunal conflated an EHC Needs Assessment with obtaining an EHC Plan and had been inaccurate with the timescale.
The Respondent argues that the Tribunal’s approach to the PCP was shaped by the Appellant’s own approach to it during the course of the initial hearing and the Tribunal was entitled to hold the Appellant to the pleaded case. The Tribunal was also entitled to reject the evidence of Dr Hymans when considering the reasonableness of any adjustment. Finally DJ’s conduct escalated so suddenly over the first term of available study that it was not possible to put in place mid to long-term strategies such as seeking an EHC Needs Assessment.
On the face of it there appeared to be a lack of clarity over the precise PCP adopted by the Tribunal and whether it was only the requirement to enter into the agreement, as set out in the Tribunal’s conclusions at paragraph 37, or the requirement to comply with some or all of the terms of the agreement.
However, I am persuaded that the Tribunal was addressing the practice of implementing performance agreements, as explained by the Respondent, which encompasses both entering into the agreement and its performance.
- 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