ABG Employment Newsletter – June 2016

Scottish Court of Session (Inner House) confirms that pupil’s ADHD did not amount to a disability under the Equality Act 2010

The Scottish Court of Session (Inner House) has confirmed that a pupil’s Attention Deficit Hyperactivity Disorder (ADHD) did not amount to a disability under the Equality Act 2010 (EqA 2010), which would have meant that her exclusion and withdrawal from school was unlawful.

M was a boarding school pupil who had ADHD. In 2013, M was caught having sexual intercourse with a male student in the school, which resulted in her exclusion and her school principal advising M’s mother to withdraw her to avoid an expulsion on her record. M’s mother appealed against the decision stating that M was disabled for the purposes of the EqA 2010 because of her ADHD and its negative effect on her decision-making, and as such, she had been discriminated against.

The Additional Support Needs Tribunal for Scotland had rejected the claim as it was not satisfied that M was disabled for the purposes of the EqA 2010. The Court of Session agreed refusing M’s appeal as:

  • The Tribunal’s view that M was not disabled under section 6(1) of the EqA 2010 as her mental impairment did not have a substantial and long term adverse effect on her ability to carry out day to day activities was a view that it was entitled to take based on the evidence of M’s teachers. As such, there could be no finding of discrimination.
  • There did not appear to be a causal link between the ADHD and the sexual act resulting in her expulsion, based on the element of planning involved (rather than it being an impulsive act as a result of the ADHD) and evidence that M had had previous sexual relationships, which M’s mother did not appear to attribute to M’s ADHD.

This decision highlights the importance in such cases of proving a causal nexus between the disability and the act in question and also being able to demonstrate “genuine prejudice” as a result of a tribunal’s failure to provide an adequately reasoned decision, which was not the case here.

Court of Appeal considers effectiveness of anti-oral variation clauses

The Court of Appeal has indicated, in obiter comments, that including an anti-oral variation clause in a contract will not prevent subsequent variation of the contract orally or by conduct. The clause in question stated that any variation of the contract should be in writing. The decision is of interest because it clarifies inconsistent Court of Appeal authorities on this topic.

Also of interest is the Court of Appeal’s discussion of the correct approach to the contractual interpretation of long-term agreements. The decision confirms that, while the starting point for such contracts is that the parties are free to determine for themselves what obligations they will accept, there is also a certain flexibility of approach to interpretation to take account of the reasonable expectations of the parties. However, the court warned that parties must take care not to seek to achieve that which might be achieved by implication by an inappropriate approach to interpretation

Court of Appeal confirms that the Serco v Lawson test applies to discrimination claims under the Equality Act 2010

The Court of Appeal has upheld the High Court’s decision that the territorial scope of the Equality Act 2010 (EqA 2010) does not extend to Afghan interpreters, working with British military forces in Afghanistan, who were employed by the British government. The Court confirmed that the Serco v Lawson test extended beyond claims under the Employment Rights Act 1996 to discrimination claims under the EqA 2010 but rejected the idea that a more generous standard should be implied into that test for discrimination claims.

High Court orders destruction of confidential information on defendants’ computers

The High Court has made an order for the inspection and imaging of electronic devices and computers belonging to ex-employees and their new employer, and destruction of any confidential information belonging to the old employer found on them. While the court could find no previous authority for ordering the destruction of relevant material, it felt justified in doing so because the defendants had admitted using their employer’s confidential information and the evidence showed that they could not be trusted to seek out and delete the relevant material themselves. The terms of the order was subject to several assurances, including one that copies of the imaging of the devices would be preserved so that if material might subsequently be found to have been wrongly removed, it could be restored.

EAT further loosens causal link test for discrimination arising from disability claims

The EAT has held that there only needs to be a loose causal link between an employee’s conduct and their disability for a discrimination arising from disability claim to be made out. The employee was dismissed for misconduct after he lost his temper when he learned his employer had decided to move a course to a venue inaccessible to him as a wheelchair user. The employee’s tendency to be short tempered was a personality trait unrelated to his disability of paraplegia. However, the EAT reasoned that the situation only arose because the employee was disabled and it was therefore incorrect for the tribunal to find that the misconduct was unrelated to the employee’s disability. The case was remitted back to the tribunal for rehearing.

Dismissal of teacher who stood by sex offender husband was indirect religious discrimination

The EAT has held that a teacher had suffered indirect religion or belief discrimination when she was dismissed for standing by her husband, the headteacher of another local school, after he was convicted of downloading indecent images of children and voyeurism. The teacher, a practising Anglican Christian, had made her decision in light of her marriage vows, specifically her commitment, in the presence of God, for better or worse. Accepting the difficulty inherent in such circumstances for anyone in a loving and committed relationship, those who also held such a religious belief faced a particular disadvantage if put to the election of choosing between their partner and their career.

Guidance Note on dress codes

Dress codes have hit the headlines recently when a woman was reportedly sent home from her job as a receptionist for refusing to comply with a dress code requiring her to wear two to four inch heels. She responded by setting up an online petition on the government and Parliament website calling for a change to the law to make it illegal for a company to require women to wear high heels at work and calling current formal work dress codes “out-dated and sexist”.

We have prepared a Guidance Note on this subject which can be read by following the link below:-

The comments in this note are of a general nature only. Full advice should be sought on any specific problems or issues.

Christopher Gigg [email protected] +44 (0)115 934 3308

Kathryn Meir [email protected] +44 (0)115 9343310