An appeal tribunal in an education case has held it contravened human rights law to exclude from the Equality Act an autistic child with aggressive tendencies.
An 11 year-old child with autism and other conditions was excluded from school for 1 1/2 days because of aggressive behaviour arising from his disabilities. His claim under the Equality Act 2010 would fail under the normal UK rules – he would not have a disability because regulations exclude from the Act his tendency to physically abuse others.
However the Upper Tribunal held that excluding the child from Equality Act protection in these circumstances was a breach of the European Convention of Human Rights. Accordingly the regulations did not apply and the child should be seen as having a disability. It would be for a tribunal to decide whether the exclusion from school was justified under the Equality Act, ie whether it was a proportionate means of achieving a legitimate aim.
Claimants may seek to raise similar arguments in employment cases, including for other excluded conditions. How far these arguments can apply in employment cases will be a matter for the courts as and when it is argued.
The case is C & C v The Governing Body of a School and others, Upper Tribunal Administrative Appeals Chamber, 2018 www.bailii.org/uk/cases/UKUT/AAC/2018/269.html