Balancing an employer’s duty to protect their employees against preventing disability discrimination claims from excluded children.

C&C v The Governing Body of a School

The recent case of C&C v The Governing Body of a School means that disabled children are entitled to make a claim of disability discrimination arising from their exclusion by a school if their behaviour that caused the exclusion demonstrates a ‘tendency to physically abuse.’ If such a claim arises, the school will have to show that the exclusion was proportionate, justified and that reasonable adjustments for the child were made.

This decision is particularly challenging for employers who have to balance making reasonable adjustments for the child displaying violent behaviour against ensuring they maintain a duty of care for an employee’s health and safety. Failure to do so may give rise to claims from the employee for failure to ensure their safety at work.

Health and safety at work

Employers have an implied duty to care for their employees’ health and safety at work. This includes a duty to:

  1. select proper staff
  2. provide appropriate materials
  3. provide a safe system of work

This is confirmed by the Health and Safety at Work Act 1974. It is also important to note that an employer has a duty in relation to mental health as well as physical health.

Employers also have a duty to instruct their workers of what precautions they ought to take to make the work as reasonably safe as it can be made. An employer must also take reasonable precautionary steps to see that their instructions are carried out.

If an employer fails the safeguard the position of their employees in these circumstances, various claims may arise including Constructive Unfair Dismissal.

Constructive Unfair Dismissal

If the employee has been employed by the school for a continuous two years there may be a claim for constructive unfair dismissal in these circumstances. The tribunal will consider whether the dismissal was fair or unfair taking in to consideration the circumstances, the employer’s conduct and whether it was reasonable.

If successful the employee will be entitled to a basic award and a compensatory award.

Claim in tort for personal injury

The Court has further determined that a teacher at a special school for children with learning disabilities may be able to claim for personal injury, where the school had failed to inform the teacher that a pupil may have had a learning disability and who had failed to provide training that may have enabled the teacher to avoid the attack.

What should the employer do to mitigate the risks?

It is imperative that employers implement safe systems for employees who work with pupils who are potentially physically abusive. It is important that clear policies are drafted and up to date and appropriate training is given. The employer must consider the safety of their employees, whilst at the same time make reasonable adjustments for the student before expulsion.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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