Schools and claims by pupils for victimisation

A school has successfully defended a claim for victimisation brought by a sixth former. Susanna Bennett explains how.

The First-tier Tribunal (Special Educational Needs and Disability) (the “FTT”) handed down judgment in X (A Former School Pupil) v Y Independent School earlier this year. A claim was brought for victimisation of a Sixth Form school boy (the “Claimant”) following an email from his mother to the headteacher alleging discrimination. The FTT found that six of the seven alleged detriments were time-barred; all seven alleged detriments were further dismissed as not having happened, and (had they happened) not having been motivated by the protected act.

The Claimant’s mother (“Z”) emailed the headteacher in the spring term of year 12 complaining that her son had not been assigned a formal grade for Maths (due to his being allowed to complete class tests in his own time). The Claimant experienced test anxiety and had a diagnosis of dyslexia. The FTT ruled that this email was a protected act.

The alleged detriments were extremely wide-ranging: he had (allegedly) been unsupported in years 12 and 13 with his Maths, EPQ and Computer Science qualifications, had not been given his Bronze Duke of Edinburgh award, had been obstructed in achieving his Silver award, had been unfairly dissuaded from appealing his EPQ mark, had been prevented from participating in sports day, and had been criticised for stopping playing cricket.

Seven teachers gave oral evidence at the three-day Trial [1]. The FTT preferred the teachers’ evidence to that of the Claimant and Z in all respects.

The following points are of interest:

Much turned on witnesses’ credibility. Z gave evidence about the detriments which went (in the author’s view) far beyond what she could reasonably have known as a second-hand witness, and she expressed herself with an unjustified degree of certainty. In the witness box she was combative and uncontrolled; she added significantly to her written evidence. The FTT noted that on multiple points her evidence was uncorroborated and/or inconsistent with other evidence, and on one point she admitted embellishing her evidence in the stand. The Claimant was a more measured witness but his oral evidence was sometimes inconsistent with his pleaded case. A full copy of the EPQ candidate form was disclosed during the course of the Trial which (the FTT found) proved beyond doubt that he had been adequately supervised, contrary to his evidence. The FTT found that Z’s and the Claimant’s evidence lacked credibility, in contrast to that of the teachers. The case is a reminder that all facts need to be pleaded and to be set out in written evidence, and witnesses should beware straying outside their direct knowledge.

It was claimed that the relevant teachers were motivated by the protected act email, despite their denial that they had seen the email, or were aware of a claim of disability discrimination. It was argued, in a nutshell, that various staff members were aware of the email and complaint (contrary to their evidence); alternatively that the RB responded defensively to the protected act, and this attitude impacted staff members more widely. The FTT rejected this on the facts: the teachers alleged to have treated the Claimant detrimentally had not seen the protected act email, and their actions had not been motivated by Z’s complaint.

The Claim was brought between three and 17 months after the expiry of the six-month limitation period for Equality Act 2010 claims (Schedule 17, para 4(1)), depending on the detriment. The Claimant’s argument that the detriments formed a single course of conduct (and the limitation period should therefore be calculated as running from the last detriment) was rejected. The FTT accepted the RB’s submissions that its discretion to extend the limitation period should not be exercised, on the basis that (a) if brought in time, (i) the events would have been more clearly remembered by its witnesses, and (ii) more witnesses from the RB might have been available; and (b) no good reason for the delay had been advanced. The RB therefore succeeded in its limitation defence without submitting evidence specific to this point.

Susanna Bennett of Deka Chambers was instructed by Andrew Sheppard at Kennedys Law LLP for the successful respondent.

[1] The Responsible Body’s (“RB”) application to call more than five witnesses was initially refused by the FTT on the basis that the hearing date would be lost, and one member of staff could give evidence on behalf of others. A renewed application by the RB for the attendance of seven witnesses given their direct involvement in the events and the gravity of the accusations succeeded at Trial.