The claimant was employed by the respondent as a teacher.  He was the head of modern foreign languages.  In 2013 there were issues raised about his performance in the role and in September 2014 there was a support plan put in place to address the concerns.  In trying to deal with the issue of performance, the claimant stepped back from the head of modern languages.

In May 2016, the claimant outlined that the alteration to his duties was helping, as he had been suffering from anxiety and had been receiving support from an acute mental health team but he had not made it known to the respondent at the time.   This work eventually led to the end of the support plan that had been in place.  However, it was in June 2016 that the issue leading to the claimant’s dismissal occurred.

The issue was relating to a Spanish GCSE Controlled Assessment, which operates like coursework, only the students have to complete it in class.  The claimant was given ‘manuscripts’ from another teacher, CL, and told to distribute them to the students sitting the controlled assessment.   This was with instruction for the students to complete in their own handwriting.

CL resigned shortly after disciplinary proceedings were issued.  The claimant acknowledged a wrongdoing but stated that he was suffering from anxiety and that he felt battered into doing it.  He was suspended on the basis of the malpractice.   During the disciplinary process, the claimant made allegations that other senior members of staff were involved in the cheating.   This meant that the disciplinary process was suspended until the allegations were heard.   When it recommenced, he was dismissed on the basis of misconduct.  The claimant then claimed on the basis of unfair dismissal and disability discrimination.

At first instance, the ET dismissed all of the claims, stating that the dismissal was not in consequence of the disability and therefore not discriminatory.  On the issue of the unfair dismissal, they held that it fell within the band of reasonable responses available in light of the conduct.

On appeal, the EAT reviewed the decision of the ET, finding that they had erred in applying the test of causation.  The ET outlined that they were looking for a direct causal link between the claimant’s disability and the dismissal.  The EAT held that it was too stringent a test and that the position in City of York Council v Grossett [2018] should apply. This means that the test for causation should be ‘looser’, especially in light of the words ‘in consequence’ in the Equality Act 2010 (which is not replicated in the Disability Discrimination Act 1995 which apples in NI).  Indeed, the EAT held that the reason for that change was to ensure there was a looser view of the causation required for a successful discrimination claim.  For this reason, the case was remitted back to the ET for a fresh decision on the discrimination claim.

Practical Lessons: This case demonstrates a subtle difference in the legislation that exists in Northern Ireland and England and Wales relating to disability discrimination.    The use of ‘in consequence’ in the Equality Act 2010 may seem innocuous on first sight but its effect can be seen in this judgment.  It gives a wider view to the causation that must be shown for a discrimination claim to be successful.  This may have led to a different result in Northern Ireland. 
https://assets.publishing.service.gov.uk/media/5e3bf7aee5274a08e020aac9/Mr_Martin_James_Scott_v_Kenton_Schools_Acadmey_Trust_UKEAT_0031_19_DA.pdf