Scott v Kenton Schools Academy Trust

For discrimination arising from disability under section 15 of the Equality Act 2010, the connection between disability and the relevant "something" may be relatively loose and may involve more than one causal link. It remains an objective factual question, assessed robustly, but a tribunal must not require proof that the disability made the employee unable to comply with the applicable standard.

Justification requires a critical proportionality assessment. The tribunal must balance the discriminatory impact against the legitimate aim and consider whether a lesser sanction would sufficiently achieve that aim. This is more demanding than the unfair-dismissal range of reasonable responses test.

A teacher was summarily dismissed for serious examination malpractice after he gave pupils notes prepared by another teacher for use in controlled assessments. He accepted that the conduct was wrong. He maintained that anxiety and depression had impaired his judgment and decision-making.

The Employment Tribunal dismissed claims under sections 15 and 20 of the Equality Act 2010, together with claims for unfair dismissal. It found that the conduct did not arise in consequence of disability and that dismissal was proportionate. The claimant appealed the disability claims and the ordinary unfair-dismissal decision.

The central issues were the correct causal approach under section 15, the proportionality of dismissal, the reasonable-adjustment claim, and whether errors on those issues undermined the finding of fair dismissal.

1. Appeal allowed in part. The Employment Tribunal had applied an unduly stringent test when deciding whether the examination malpractice arose in consequence of disability for section 15(1)(a) purposes. The statutory language permits a relatively loose causal connection and may encompass more than one link. The Tribunal's focus on whether the claimant was unable to comply with examination rules set the threshold too high.

2. The medical report was material evidence. The Tribunal was not obliged to accept it, but had to engage with it using the correct legal test and reach its own reasoned, objective conclusion. Its reliance on the claimant's continued performance of other duties and on the fact that the misconduct comprised several acts could have had a different significance under the correct approach.

3. The Tribunal also erred in its section 15(1)(b) proportionality assessment. It identified a powerful legitimate aim in preserving examination integrity, but did not critically consider whether a sanction short of dismissal could sufficiently achieve that aim. The employer need not prove that dismissal was the only possible response, but proportionality is not a range-of-reasonable-responses inquiry.

4. The errors rendered the reasonable-adjustment decision unsafe. A correct decision on the disability-related consequences of the conduct could affect both substantial disadvantage and whether a lesser sanction was a reasonable adjustment under section 20.

5. The ordinary unfair-dismissal conclusion stood. A dismissal may be fair under section 98(4) of the Employment Rights Act 1996 while failing the distinct justification test in section 15. Here the Tribunal had independently found that dismissal fell within the range of reasonable responses.

6. The section 15 and section 20 claims were remitted for fresh determination by a differently constituted Employment Tribunal. The claimant's disability at the relevant times, the whistleblowing claim, and unfair dismissal were not to be revisited.

• Employment Appeal Tribunal: Allowed the appeal concerning sections 15 and 20 of the Equality Act 2010; remitted those claims to a differently constituted Employment Tribunal; dismissed the appeal concerning ordinary unfair dismissal.
• Employment Tribunal: Following a hearing in May 2018, dismissed the claims for disability discrimination and unfair dismissal.