School pupil with ADHD caught having sex in class loses ‘unlawful discrimination’ claim over expulsion

A boarding school pupil with attention deficit hyperactivity disorder (ADHD) who was effectively excluded after being caught having sex with another student on a teacher’s desk has had a discrimination case dismissed by appeal judges.

The Inner House of the Court of Session refused an appeal by the student’s mother, who claimed that her daughter was disabled and that the school’s decision amounted to “unlawful discrimination”.

Lady Smith, Lord Brodie and Lord Malcolm heard that the school principal decided that he had no alternative but to exclude both the 16-year-old female and the male student after they were found by a teacher having sex in a classroom one evening, but the principal wrote to the girl’s mother advising her to withdraw her daughter so as to avoid there being an expulsion on her record and to limit any difficulty in re-establishing her academic future.

However, the girl’s mother “JC”, the appellant, challenged the decision by Gordonstoun Schools Limited before the AdditionalSupport Needs Tribunal for Scotland (ASNTS), claiming that her daughter “M” was disabled and that the school discriminated against her.

The claim, as presented to the three member panel comprising a legally qualified convenor, a member with a social work background and a retired head teacher member, focussed on M having ADHD, which caused impulsivity, hyperactivity and difficulty in organising her thoughts and actions, the latter being referred to as “impaired executive functioning”.

The tribunal recognised that it required to consider M’s position without taking into account the beneficial effects of any medication, though it was unable to make any relevant findings about that matter.

However, it was not satisfied that M’s mental impairment had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

On causation, the tribunal was not satisfied that M’s actions arose in consequence of her ADHD and concluded that, in any event, the effective expulsion of M was not discriminatory as the nature of the conduct, when put in the context of a mixed sex boarding school, “had to result in expulsion”.

The tribunal therefore unanimously rejected the claim as the panel was not satisfied that M was disabled within the meaning of section 6(1) of the Equality Act 2010, meaning no question of unlawful discrimination arose.

On appeal, the contentions for the appellant were that the tribunal had erred in concluding that M was not disabled and that they had failed to have regard to the expert evidence, as well as the appellant’s evidence, which showed that M’s ADHD had a “substantial adverse effect on her day-to-day functioning”.

It was also argued that they had failed to have regard to appropriate guidance, and that their reasoning was “incomprehensible”.

For the respondents, it was contended that the appellant’s complaint amounted to no more than that the tribunal had accepted certain evidence, preferring it to other evidence.

The judges were not satisfied that there was any merit in the submissions and accordingly refused the appeal.

Delivering the opinion of the court, Lady Smith said: “It is not the law that every person with a mental impairment is disabled for the purposes of the 2010 Act. That is only the case if it is established that the impairment in question is at a level which amounts to a substantial and long term adverse effect on normal day-to-day activities. The onus of doing so lies firmly on the person seeking to advance a claim that there has been a contravention of a part of the Act.”

The judges added that “caution” should be exercised before criticising a decision of an “expert tribunal” and that the tribunal was “plainly entitled” to prefer the evidence it did.

Lady Smith continued: “Turning to the matter of reasons, there is no proper basis for the submission that the tribunal failed to provide adequate reasons for their conclusion that M was not disabled. Their reasons are shortly stated but that is, in the circumstances, commendable. It is wrong to describe them as incomprehensible.

“They should be considered in context. That was, put shortly, as follows. M had left the school. Readmission was not sought. The issue was not whether, in principle, ADHD could amount to a disability for the purposes of the 2010 Act – it was whether it did so in M’s case.”

The judges also observed that the ASNTS is a tribunal where the emphasis is on “informality and flexibility”, where the norm is that decisions are to be issued “promptly without elaborate reasons” and there is a duty, in terms of the “overriding objective” to deal with cases in ways which are “proportionate”.

“It is enough that the reasons are intelligible and enable the reader to understand why the tribunal decided as they did and what conclusions were reached on the principal issues in the case. These reasons serve that function,” Lady Smith said.

“Further,” she added, “as has often been observed, a reasons challenge will only succeed if the aggrieved party can show genuine prejudice by the failure to provide an adequately reasoned decision. The appellant did not point to any such prejudice.”