In DLA Piper’s latest case report, the upper tribunal in a special educational needs case provides guidance on the exclusion from the definition of a disability under the Equality Act 2010 of a “tendency to physical abuse of others”.
Although this not an employment case, the decision will be of interest to employers and occupational health professionals, because the same exception could apply in a workplace scenario.
Definition of disability and violent conduct
Case facts: X v Governing Body of a School
S is a child who has been diagnosed with an autistic spectrum disorder. She moved to the respondent school at the age of five in May 2012. In August 2012, the local authority issued a statement of special educational needs for her, and she was allocated teaching assistant support.
In November 2012, an incident occurred when S kicked her class teacher and two children, threatened and slapped her teaching assistant, and stamped on a child’s foot. The headteacher excluded her for one day.
Despite behaviour support strategies, between February and May 2013, there were six further incidents of a violent nature that resulted in exclusions of up to four days. There were other such incidents that did not result in exclusion.
In May 2013, S was withdrawn from the school to attend a special needs school. The appellants brought proceedings against the school alleging discrimination arising from disability and failure to make reasonable adjustments in respect of S’s exclusions from school.
Under the Equality Act 2010, the definition of disability specifically excludes certain conditions, including “a tendency to physical or sexual abuse of other persons”.
The first-tier tribunal (special educational needs and disability) was satisfied that S had a disability. However, it considered the circumstances of each of S’s exclusions and concluded that, as each incident involved S physically attacking a child or member of staff, S could be described as having a tendency to physically abuse other persons.
As that physical abuse formed at least part of the reason for each exclusion, S’s treatment arose from a condition that could not be considered an impairment.
The tribunal dismissed the claims.
On appeal, the upper tribunal had to consider whether or not the fact that the tendency towards physical abuse was caused by the disability meant that it should not be excluded. The upper tribunal considered that the exclusion did not apply only to freestanding conditions.
The upper tribunal gave the following guidance as to what will constitute a tendency towards physical abuse:
- there must always be an element of violent conduct;
- there is no requirement for any knowledge on the part of the perpetrator that what they are doing is wrong;
- the existence of some sort of misuse of power or coercion may lead to the conclusion that a much lower degree of violence than would otherwise fall within the terms of the regulation would suffice;
- in the case of a child, the stage of their development is a factor which will fall to be considered in deciding whether or not that particular child has a condition so as to bring it within the remit of the regulation at all; and
- it is not necessary for a tendency towards physical abuse to be manifested frequently or regularly and it may be that the tendency is only displayed in response to certain trigger events.
The upper tribunal was satisfied that S’s conduct constituted evidence of her condition of a tendency towards the physical abuse of other persons.
Even though that tendency arose in consequence of S’s autism, the exclusion applies not just where that tendency constitutes an impairment in itself, but where these tendencies arise as a consequence or manifestation of an impairment that constitutes a disability.
However, it is important to determine the basis for the alleged discrimination. If the alleged discrimination was the result of an excluded condition, the exclusion will apply. That was the case here and, accordingly, S was not to be treated as having an impairment and the disability discrimination claim failed.
Implications for employers
Although the case was decided under the education provisions of the Equality Act 2010, the definition of disability is the same for employment purposes.
This case suggests that, where an employee’s disability manifests in violent conduct towards others that meets the requirements of a “tendency to physical abuse of others”, the employer will be able to take action, including dismissal, without the risk of a discrimination claim, provided the action taken by the employer is related to the violent conduct and not to the underlying condition.
However, if the discrimination is specifically related to the disability that gave rise to the excluded condition, the exclusion will not apply.