The Scottish court recently heard an appeal by the mother of a girl, M, who had ADHD and who was expelled after she was found having sex with a fellow pupil on a teacher's desk.

The mother argued that the school had unlawfully discriminated against M, in contravention of the Equality Act 2010 (the Act). She asked the Additional Support Needs Tribunal for Scotland (the Tribunal) for:

  1. a statement that the school discriminated against M;
  2. a written apology from the school to M and her family; and
  3. training of school staff and alterations to the school's disciplinary policy, to ensure that no similar incidents occur in the future.

M was 16 at the time the incident occurred. She and her boyfriend had been in a relationship for some time and planned their tryst by email. The member of staff who discovered them in flagrante reported the matter and both pupils were suspended. Two days later, the Principal decided that both pupils should be required to leave the school with immediate effect, since their behaviour constituted a clear breach of the school's Relationships Policy. He did not meet with either M or her mother before taking this decision. At the school's invitation, the mother decided to withdraw M from the school.

M was due to sit GCSEs that summer. The Principal refused to allow her to attend the school's premises to sit her exams, saying that staff would try to support her with her work but that she would need to take them at another centre.

The law

Under the Act, a person has a disability if (a) they have a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. With certain exceptions that do not apply to M, an impairment is to be treated as having a substantial adverse effect if measures (such as medical treatment) are being taken to treat or control it but, without those measures, the impairment would have such an effect.

According to the Act, a person (A) discriminates a disabled person if (1) A treats the disabled person unfavourably because of something arising from their disability and (2) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

The Act also states that A discriminates against a disabled person if A applies a provision to the disabled person, and

  1. A applies the same provision to those who are not disabled;
  2. the provision puts disabled people at a disadvantage when compared to those who are not disabled;
  3. it puts the specific disabled person at that disadvantage; and
  4. A cannot show that the provision is a proportionate means of achieving a legitimate aim.

The Tribunal hearing

The Tribunal heard conflicting evidence about whether M's condition amounted to a disability and, if it did, whether her behaviour arose as a consequence of it. It was acknowledged that ADHD can cause impulsivity and poor executive control, but there was disagreement about whether (or the degree to which) M experienced these symptoms, and whether they played a part in her actions on the evening in question.

The Tribunal panel unanimously held that M was not disabled within the meaning of the Equality Act 2010. They added that, even if they were wrong on that point, the evidence did not show that M's behaviour arose as a result of her ADHD. For instance, the fact that M and her boyfriend planned their encounter indicated that it had not taken place as a result of M lacking impulse control. Moreover, even if her ADHD had been a causal factor, the Tribunal would not have held the effective expulsion to have been discriminatory, since the school had pursued the legitimate aim of maintaining standards of discipline and the health, safety and welfare of its pupils.

However, the Tribunal criticised the Principal for deciding to remove M without first giving her an opportunity to make her case, and considered that the school should have made greater efforts to ensure that her exams were not affected. The Tribunal was also critical of the school's Relationship Policy: by making no separate provision for pupils with a disability, it put such pupils at a disadvantage. Had the Tribunal reached different conclusions about M, they would have been minded to conclude that this amounted to a failure to make reasonable adjustments.

The mother appealed, claiming that the Tribunal had been wrong to find that M was not disabled, had failed to address the evidence showing the effect of M's ADHD on her day-to-day functioning, and had failed to make any findings about the effect that M's medication had on her.

The High Court decision

The High Court pointed out that not every person with a mental impairment is disabled for the purposes of the Act – only those whose impairment results in a substantial and long-term adverse effect on their normal day-to-day activities. The onus for establishing this lies on the person claiming discrimination. The issue was not whether, in principle, ADHD could amount to a disability within the meaning of the Act – it was whether it did so in M's case.

Whilst it was true that the Tribunal made no findings as to the effect of M's medication, the matter was not explored in the mother's submissions to the Tribunal, and the Tribunal was not obliged to go looking for evidence. The only evidence it had on the point was from one of the expert witnesses, who said that the medication M was taking did not help with the symptoms that, according to M's mother, gave rise to her behaviour.

The Tribunal was entitled to prefer the evidence that M was not disabled (and that her ADHD was not a cause of her actions) over the contrary evidence. The Tribunal had given sufficient reasons for its decision and it was not unreasonable, so the High Court could not set it aside.

Having dismissed the appeal, the High Court nevertheless went on to give its views on some of the issues raised.

In terms of the discrimination claim, had the Tribunal found that M was disabled, the questions it would have needed to ask were as follows:

  1. What was the unfavourable treatment meted out to M?
  2. For what reason was she treated that way?
  3. Can it properly be concluded that having sex was a consequence of M's disability?

The answers to the first two questions were simple: the alleged unfavourable treatment was expulsion, and the reason for expulsion was for having sex. The difficulty for M was that the evidence did not show that her behaviour was a consequence of her ADHD. Poor judgement is an aspect of ADHD and M undoubtedly showed poor judgement, but it did not follow that this was because of her ADHD – many teenagers without ADHD display poor judgement.

The High Court disagreed with the Tribunal's view that the school's Relationships Policy could be seen as indirectly discriminatory, or as a failure to make reasonable adjustments. It was true that the policy did not make specific provision for disabled pupils. However, to establish discrimination, the mother would have had to show that the policy put all pupils with ADHD at a disadvantage as compared to those without ADHD, but there was no evidence that all young people with ADHD would find it more difficult than others to comply with the policy. Secondly, the Relationships Policy did not prescribe expulsion in all cases: it gave the Principal discretion to decide that, in a particular instance – for instance, where a pupil was disabled – a lesser sanction would be sufficient. Having found that the policy was not discriminatory, the High Court made no comment about whether any apparent discrimination could be justified as pursuing a legitimate aim.

For a duty to make reasonable adjustments to arise, the school would have to be applying a provision to pupils with ADHD that put them at a disadvantage, but – as discussed – there was no evidence that the Relationship Policy had this effect.

The High Court did not say anything about the Principal's failure to speak to M before deciding to remove her from the school, or the school's approach to accommodating her during her GCSEs.

Comment

At first glance, it might seem to be common sense that expulsion was an appropriate response to M's behaviour, but there are aspects of the case that warrant consideration.

It is in accordance with the principles of natural justice to allow pupils (or their parents) to make representations before making a decision to exclude them. It is questionable whether a failure to do so would be unlawful, but (arguably) an expulsion decision is more likely to be appealed if the pupil has not had an opportunity to state his or her case. Careful handling of these situations may prevent them from being prolonged through an appeals process.

Although the High Court held that the school's Relationships Policy did not discriminate against pupils with ADHD, it is conceivable that pupils with other disabilities might find it more difficult to comply. Had that been the case, then the school may have had to defend itself by relying on the policy's flexibility with regard to sanctions, or demonstrate that – despite being discriminatory – it was justifiable. When drafting policies, schools should take the position of disabled pupils into account and, if their policies do not expressly accommodate those pupils, consider whether they are sufficiently flexible to meet any obligation to make reasonable adjustments, or can otherwise be justified as pursuing a legitimate aim.