The Employment Appeal Tribunal (EAT), in the recent case of Ahmed v The Cardinal Hume Academies considered whether it was direct discrimination and harassment for a school to suspend a trainee teacher due to the fact that he could only write by hand for a few minutes.
Disability is a protected characteristic under the Equality Act 2010, meaning that it is unlawful to discriminate against anyone in the workplace because of a disability. The Act also makes it unlawful to treat an employee unfavourably because of something arising as a consequence of a disability, unless the employer can show that the treatment is a proportionate means of achieving a legitimate aim.
“Harassment”, for the purpose of the Act is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’. In deciding whether conduct shall be regarded as having this effect, the following must be taken into account:
- the perception of the complainant
- the other circumstances of the case
- whether it is reasonable for the conduct to have that effect.
Dyspraxia and alternative teaching methods
Mr Ahmed was a teacher who had trained with ‘Teach First’ and had been offered a placement at one of the Academies’ schools. He suffered from dyspraxia which affected his co-ordination and caused hand pain and difficulties with writing. This meant that he could only write for several minutes at a time.
Before starting his job, he informed the training provider that he had dyspraxia, identified his symptoms and requested to teach using PowerPoints and projectors.
The school’s occupational health doctor assessed Mr Ahmed and provided the school with a report highlighting his disability and the impact this had on him. The doctor confirmed that he would meet the definition of ‘disabled’ within the meaning of the Act, but was fit to work as a teacher with an appropriate risk assessment.
The headmaster was concerned about Mr Ahmed’s ability to fulfil his role and these concerns were relayed at two meetings between the headmaster and Mr Ahmed.
During these meetings, remarks were made which Mr Ahmed found hostile and dismissive. The school subsequently suspended Mr Ahmed pending investigation as to how their concerns could be resolved.
Mr Ahmed submitted a grievance and resigned on the same day and subsequently brought multiple claims in the Employment Tribunal (ET) for discrimination arising from a disability, harassment and direct discrimination on grounds of disability.
The tribunal’s findings
The ET dismissed Mr Ahmed’s claims. Whilst it acknowledged that the remarks made during the meeting offended Mr Ahmed, they found that they did not amount to harassment and it was not reasonable for Mr Ahmed to regard these remarks, and the subsequent suspension, as amounting to harassment.
It also concluded that he was suspended because of his difficulties with writing and not because of his dyspraxia, and as such this did not amount to direct discrimination.
Mr Ahmed appealed the ET’s decision. He believed that the ET had failed to take the correct approach to assessing his claim of harassment and that it had erred in its findings in relation to the direct discrimination claim (i.e. they failed to give effect to their own finding that the reason for his suspension was his disability, namely his difficulty with handwriting).
The EAT dismissed his appeal on both counts, agreeing with the findings of the ET.
When considering the claim of harassment, the EAT referred to the Court of Appeal’s decision in Pemberton v Inwood holding that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity, or creating an adverse environment for him, then it should not be found to have done so.
With regard to the discrimination claim, in essence, it found that the pain Mr Ahmed experienced when writing by hand was an adverse effect of his disability but was not the disability itself.
Therefore, his suspension could not amount to direct discrimination on the grounds of his disability. It could have amounted to discrimination arising from disability, but the EAT were satisfied that the school had objectively justified its decision to suspend Mr Ahmed and, as a result, he was not treated less favourably as a result of “something arising from a disability”.
What impact will the ruling have on schools?
This case provides helpful guidance on the correct test for a claim of harassment and highlights that harassment cases are highly fact specific and reliant upon the evidence that is presented in the tribunal.
It also serves as a useful reminder to schools to take care when discussing a protected characteristic with employees.
For further advice or information, please contact Hannah Wilding on 01242 246485 or at [email protected]