IN THE JERSEY EMPLOYMENT AND DISCRIMINATION TRIBUNAL

IN THE MATTER BETWEEN

	C	CLAIMANT
	AND
	R	RESPONDENT
	JUDGMENT

 

Reference:                   [2024] TRE 145

Hearing date:                4 and 5 February 2025

Before:                         Hannah Westmacott, Deputy Chair                                                                           Alison Brown and Christopher Stephenson, Panel Members

For the Claimant:           Advocate V Milner, Viberts

For the Respondent:      Mr I Maccabe, No 5 Chambers

REPORTING RESTRICTIONS

Pursuant to Article 32 of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016, it is prohibited for any person to disclose or publish any matter likely to lead to members of the public to identify the Claimant in these proceedings. This order does not apply to (a) the Claimant’s parents (b) any person to whom the Claimant’s parents, in due exercise of their parental responsibility, disclose such a matter or who learns of it through publication by either parent, where such publication is a due exercise of parental responsibility (c) any person exercising statutory (including judicial) functions in relation to the Claimant where knowledge of the matter is reasonably necessary for the proper exercise of the functions.

DECLARATION

In accordance with the Discrimination (Jersey) Law 2013, C has the right not to be excluded from nursery because C suffers seizures as a consequence of epilepsy, unless to do so can be shown to be a proportionate means of achieving a legitimate aim.

 

REASONS

Introduction

1.       The Claimant is a child who we shall refer to as C throughout this judgment. The claim has been brought on behalf of C by their father, who we shall refer to as F. C has epilepsy. C’s epilepsy constitutes a disability under the Discrimination (Jersey) Law 2013 (the “Law”). C suffers seizures as a consequence of this disability.

2.       C attended a nursery owned by R (the “Nursery”), from 7 August 2023, when C was 14 months old. On 15 April 2024, the Manager of the Nursery (the “Manager”) gave C’s parents 2 months’ notice that their contract with R and C’s place at the Nursery would end on 14 June 2024, shortly after C turned 2.

3.       This claim is for discrimination on the basis of something arising as a consequence of disability (under article 6(12) of the Law) and for failure to make reasonable adjustments (under article 7A of the Law), in relation to the Respondent no longer allowing C to attend the Nursery.

4.       A case management hearing was held on the claim on 30 September 2024, at which a final hearing was listed. That final hearing took place on 4 and 5 February 2025 (the “Hearing”). This judgment records the decision of the tribunal, together with its reasons for that decision, following the Hearing.

Evidence

5.       Two lever arch files of documents on which the parties rely were provided in advance of the Hearing. References to letters and numbers in square brackets below are to the relevant tabs and pages of those files.

6.       Statements were provided from the following witness, all of whom attended the Hearing and answered questions on the evidence:

(1)    On behalf of C: F, M (C’s mother), Ms E Vibert (Paediatric Epilepsy Nursery Specialist), Ms L Vidler (Children’s Community Staff Nurse), Dr D Lawrenson (Consultant Paediatrician, Jersey General Hospital) and Ms A Le Saint (Office of the Children’s Commissioner for Jersey).

(2)    On behalf of R: The Manager and C’s Key Worker.

7.       The tribunal found F to be an honest, plain speaking and straight forward witness. In general, the tribunal also found M to be an honest witness. However, the tribunal noted that, on at least one occasion, her oral evidence did not paint an accurate picture when compared to the documentary evidence. Her recollection was also not always clear. The tribunal, therefore, exercised some caution when considering M’s evidence on certain points.

8.       The tribunal found Ms Vibert, Ms Vidler and Ms Le Saint to be believable witnesses. Dr Lawrenson also appeared to be honest and he was confident and clear on the evidence he gave in relation to his experience and knowledge of C’s epilepsy. However, the tribunal noted that the evidence of those witnesses included their opinion regarding C attending the Nursery. Those opinions are formed on the basis of those witnesses knowledge and experience, which is limited in respect of C within the Nursery environment. The tribunal has not relied on unsupported opinion evidence when it is not within the expertise of the witness giving it (for example, see paragraphs 44(2) and (3) below).

9.       The tribunal found the Manager to be open and honest, but she did not always respond directly to questions put to her. The tribunal did not find this was because she sought to avoid any questions, but because of the impact the claim had on her and how strongly she felt about the evidence she was giving. The tribunal found C’s Key Worker to be knowledgeable, pragmatic and compelling as a witness.

10.   Affidavits were also provided on behalf of C from the manager of C’s new nursery and Ms E Lawrence (formerly Special Needs Support and Development Coordinator at Jersey Childcare Trust (“JCCT”)).

11.   Ms Lawrence did not attend the Hearing because she was no longer based in Jersey. Given that the tribunal allow evidence to be given via video link, being outside Jersey does not prohibit a witness from being cross examined on their evidence. As Ms Lawrence’s evidence could not be tested, without any good reason, the tribunal did not rely on this evidence.

12.   The manager of C’s new nursery simply attached to their affidavit two document that were prepared by the new nursery regarding C. The affidavit said they did not attend the Hearing as they did not feel it would be appropriate for them to do so. The tribunal had some regard to the attached documents, but, as we were not able to test how they were prepared or the context around them, only limited weight could be placed on these documents.

13.   When making its decision, the tribubal considered all the relevant documents in the files as well as the witnesses written and oral evidence, bearing in mind the considerations referenced above. That said, this judgment does not reference everything covered in the documentary and oral evidence. Rather, it sets out the findings that the tribunal considers to be necessary, and the key information that the tribunal relied upon, to fairly determine the claims.

 

Discrimination Arising

14.   The first provision of the Law that is relevant to C’s claim is Article 6(12), which states:

“(12)      ... a person directly discriminates against a disabled person (“the subject”) if –

(a)        the person treats the subject unfavourably because of something arising as a consequence of the subject’s disability; and

(b)        the person cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

6(12)(a) Unfavourable Treatment Because of Something Arising as a Consequence of Disability

15.   It is not disputed that no longer allowing C to attend the Nursery was unfavourable treatment.

16.   C’s representative asserts that the reason C was no longer allowed to attend the Nursery was because of the seizures C suffered, which are a consequence of C’s disability.

17.   R asserts that the reason C was no longer allowed to attend the Nursery was because the environment that C would move into at the Nursery after turning 2 would endanger C’s health and, to minimise the risk to C’s health, one to one supervision was required, which R could not provide.

18.   There is a widely cited two stage test when considering Article 6(12)(a). Tthe tribunal must first consider whether there is something arising as a consequence of the subject’s disability’. In this case it is undisputed that C’s seizures were something arising as a consequence of C’s disability.

19.   Second, the tribunal must consider whether the unfavourable treatment was ‘because of’ that ‘something’. Accordingly, the question the tribunal must answer to determine whether Article 6(12)(a) is satisfied, is: was C not allowed to attend the Nursery because of their seizures?

20.   When considering this question, the tribunal had regard to judgments of the UK Employment Appeals Tribunal (the “EAT”) which considered section 15(1)(a) of the UK Equality Act 2010 (which mirrors the wording of Article 6(12)(a)) and what is meant by ‘because of something’ in this context.

21.   In the case of Hall v Chief Constable of West Yorkshire Police (UKEAT/012/16) the EAT considered that this wording could include reference to:

“a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment”.

22.   This was supported by the EAT in the case of Charlesworth v Dransfields Engineering Services Ltd (UKEAT/0197/16) which further considered that this wording included reference to:

“an influence or cause that does in fact operate on the mind of a putative discriminator whether consciously or subconsciously to a significant extent and so amounts to an effective cause.”

23.   In addition, the tribunal has also considered an earlier judgment of the Jersey tribunal, Marques v Nightingales Limited [2019] TRE 087, when it relied upon the EAT’s approach in the case of Pnaiser v NHS England and another [2016] IRLR 170. The EAT’s approach is summarised at paragraph 70 of the Marques judgment and the considerations relevant to the question we are currently determining are:

“b)        the tribunal must then determine what caused that treatment, focusing the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the motive of the alleged discriminator in acting as he or she did is not relevant;

c)         it is not necessary for the ‘something’ that caused the unfavourable treatment to be the sole or main reason for that treatment, but it must have at least a “significant (or more than trivial) influence” on the unfavourable treatment, and so amount to an effective reason for or cause of that treatment;”

24.   R asserts that the decision to no longer allow C to attend the Nursery was made because the environment that C would move into at the Nursery after turning 2 would endanger C’s health. There would be no potential danger to C’s health (over and above that of any other child) if it were not for the fact that C suffered seizures.

25.   Consequently, the tribunal finds that the reason given by R for the Manager deciding not to allow C to continue to attend the Nursery is so closely linked and, in fact, dependent on C’s seizures that they must have had a significant influence on the thought process of the Manager, whether consciously or subconsciously, when making that decision.

26.   In conclusion, the tribunal finds that C was not allowed to attend the Nursery because of their seizures when viewing the facts of this case in light of the considerations referred to in the earlier judgments as set out above. As the seizures were something arising as a consequence of C’s disability, article 6(12)(a) of the Law is, therefore, satisfied.

27.   Accordingly, the tribunal went on to consider whether article 6(12)(b) of the Law was also satisfied.

6(12)(b) Proportionate Means of Achieving a Legitimate Aim

28.   R asserts that it can show that not allowing C to attend the Nursery was a proportionate means of achieving the legitimate aim of ensuring the continued health, safety and wellbeing of C and their peers.

29.   C’s representative disputes this, asserting that R’s actual aim of no longer allowing C to attend the Nursery was to manage staff retention, emotional upset and stress and business risk, by removing the ‘problem’ instead of improving training, confidence and risk mitigation.

30.   However, if the Tribunal finds that the aim was ensuring the continued health, safety and wellbeing of C and her peers, then C’s representative asserts that not allowing C to attend the Nursery was not a proportionate means of achieving this aim. They assert that the risks posed by C attending the Nursery were not objectively assessed and a more proportionate approach was possible, as has been demonstrated by the nursery that C now attends.

31.   The tribunal must therefore determine:

(1)    whether the aim of not allowing C to attend the Nursery was to ensure the continued health, safety and wellbeing of C and her peers;

(2)    if so, whether that was a legitimate aim; and

(3)    if so, whether not allowing C to attend the Nursery was a proportionate means of achieving that aim.

What was the Aim?

32.   When determining whether the aim of not allowing C to attend the Nursery was the continued health, safety and wellbeing of C and her peers, the tribunal considered the following evidence to be relevant:

(1)    C started their induction week at the Nursery on 7 August 2023 and, on 12 August 2023, had a prolonged seiure, which required C to be sedated and flown to Southampton General Hospital Paediatric Intensive Care Unit (“Southampton”), where C tested positive for 3 viruses [G4]. C experienced a further seizure while in Southampton on 17 August 2023 [G19]. F noted in an email to the Office of the Children’s Commissioner for Jersey dated 19 April 2024 that it was not “entirely unexpected when going into a new environment like [the Nursery]” that C would contract viruses [C102]. Dr Lawrenson gave evidence that C’s seizures are triggered by feverish illness [G14]. M informed the Nursery of the seizures on 12 and 17 August 2023 [G19] and the Nursery understood that the seizures were triggered by viruses [G76] which they believed C had contracted at the Nursery.

(2)    On 21 August 2023, the Manager wrote to M stating “I really feel that we need to see what is best for [C] at this time. Maybe in a year’s time [C] will be that much stronger and able to cope with viruses. We would of course love [C] to be here at [the Nursery] and I will of course make sure that [C] has a place next summer but we really need to know that it is the right thing for [C].” [C12]

(3)    On 28 August 2023, C started back at the Nursery. After this, C suffered seizures at home on 9 September, 10 October, 20 November and 13 December 2023 and, after being admitted to Southampton General Hospital, C suffered a further seizure there on 15 December 2023 [G5 and 6]. Upon returning to Nursery on 5 January 2024, C was moved to a different more open plan room, where the Manager felt C could be more easily monitored and observed [G78].

(4)    The next seizure C suffered was on 9 February 2024. This was C’s first seizure at Nursery. C then had a second seizure at Nursery on 23 February 2024 [G7], which was followed by a further seizure later that day after C had been admitted to hospital [D8]. C’s final seizure before the Nursery gave notice that C’s place at nursery would end was at home on 9 April 2024 [G11]. C was admitted to hospital, either in Jersey or Southampton, after all of the seizures.

(5)    The Manager gave evidence that the seizures that occurred at Nursery were extraordinarily stressful and extremely distressing for everyone involved [G78 and 80]. The emergency medication C required had to be administered in a way that none of the staff had experienced previously, although they had had training on this.

(6)    Following the seizures at Nursery, the Nursery prepared a risk assessment, which highlighted a number of risks, including an increased risk of C contracting a virus due to the increased number of children that attend the room for children aged 2 and above (the “2+ Room”) [E122], which C was due to move into when C turned 2 in June 2024. The risk assessment also referred to the reduced ratio of adults to children in the 2+ Room and the fact it was not open plan and C could have a seizure in an area out of sight of staff [E118]. The risk assessment concluded by stating that 1:1 support would minimise the risk of a seizure going unseen, but would not reduce C’s exposure to viruses [E127].

(7)    The risk assessment also made reference to the impact a seizure could have on the staff and other children at the nursery emotionally [E122] as well as referencing the fact that if a number of the staff are dealing with a seizure this will affect the remaining staff to child ratio [E124].

(8)    On 28 February 2024 the Manager had separate telephone calls with Ms Vibert and Ms Vidler, both of whom made notes of those calls [F35 and 88] and both of whom recorded that the Manager was concerned about the difficulties of looking after C when C moves into the 2+ Room. Ms Vibert also references that the Manager was concerned about the staff being scared and questioned whether the Nursery was the right place for C. Ms Vidler also references that the Manager was concerned about the wellbeing of the staff and in addition notes that the Manager was anxious they might leave due to the pressures of caring for C.

(9)    On 29 February 2024 the Manager asked C’s parents to request a medical report from Dr Lawrenson to give his view on C going into an environment that will expose C to “an array of potential bugs” and how the position that it is necessary for C to encounter such an environment sits with the fact that C had been prescribed antibiotics to shield C from such bugs [C65]. On 15 April 2024 a letter from Dr Lawrenson was provided [C121], but it did not deal with these specific concerns, stating only that C should go to nursery “in the normal way” and not be “cocooned away” from viral infections.

(10) On 6 March 2024, in an email to Ms Vibert, F recorded concerns that the Manager had raised with him earlier that day. These concerns relate to worries of the Manager and the staff regarding C suffering a seizure. They appear to relate to both the emotional wellbeing of the staff as well as the health, wellbeing and safety of C.

(11) Ms Vibert and Ms Vidler also attended a meeting at the Nursery with the Manager and C’s Key Worker on 7 March 2024. Again, both made notes of those meetings [F28 and 89]. Both meeting notes reference the same concerns regarding C’s safety in the 2+ Room, the staff’s emotional wellbeing and this time both reference staff retention as a concern.

(12) Ms Vibert and Ms Vidlers’ notes from the calls and the meeting they had with the Manager on 28 February and 7 March 2024 all indicate that the Nursery considered it would be best for C to have 1:1 support. The notes from the calls on 28 February 2024 indicate that Ms Vidler and Ms Vibert were willing to assist the Nursery to obtain some 1:1 support from the Jersey Child Care Trust (“JCCT”) and that JCCT may be willing to support C for some, but not all, of the hours C spent at the Nursery.

(13) The Nursery prepared a request for 1:1 support from JCCT which states that the reason for the request is that it will not be safe for C to transit to the 2+ Room without 1:1 support and requests 1:1 support from 7.45am to 5pm, Monday to Friday [G72]. The request requires the parents to consent to it. On 3 April 2024, F emailed the deputy-manager of the Nursery to say they were not prepared to consent to the request on the basis they did not agree that C needed a permanent 1:1 carer. F went on to say he would be happy to discuss this further and amend the application [C70]. However, in the event, neither party followed up with each other in relation to amending the JCCT request.

(14) On 15 April 2024, the Manager wrote to M and F giving 2 months’ notice that C’s place at the Nursery would end on 14 June 2024. That letter states:

“whilst we all love [C] we are all always concerned for [C’s] safety and wellbeing, and this puts extra pressure on my team. As she turns two and would be moving through into the next room, we feel that it wouldn't be a safe enough environment for C. …

moving from an open plan room of twelve to a room that has more than twice the amount of children just wouldn't be safe. The staff ratio would be one adult to every four children. The room is big, busy and very noisy with lots of different areas for hiding which is a real concern for us. The 2 seizures that [C] had in nursery, she took herself off somewhere quiet and did not make any noise before the seizure happened. … it will be impossible for us to know [C’s] whereabouts at all times. …

we are all fully on board with [the epilepsy training], but this does not deal with the aftermath. Staff need time away to process what has happened when a seizure has occurred.”

(15) In an email to Mrs Le Saint dated 5 May 2024 following that notice being given, F wrote that the Manager “will tell you they are only acting in [C’s] best interests and I’m sure they believe that, but they have also said many times they cannot ignore how staff feel and that the anxiety / stress is too much to deal with. I believe this is a major factor in their decision.”

(16) The Manager’s witness statement makes numerous references to how much they thought and cared about C’s wellbeing and the oral evidence given by the Manager supported this position.

33.   Having considered the above evidence, the tribunal concluded that, while the Manager raised staff retention with both Ms Vidler and Ms Vibert, retaining staff and managing business risk was not the aim of no longer allowing C to attend the Nursery. The Manager was clearly concerned about the emotional upset and stress of the staff and the tribunal are of the view that this was a contributing factor when deciding to no longer allow C to attend the Nursery. In addition, the Manager considered there could be some risk to the wellbeing and safety of the other children at the Nursery and this was also a contributing factor when deciding to no longer allow C to attend the Nursery.

34.   However, the tribunal find that the strongest influence on the decision of the Manager was that they felt it was in the best interests of C to no longer attend the Nursery. It was clear that this was the Manager’s view as soon as they knew C required hospitalisation in Southampton following a seizure during their induction week at the Nursery. In addition, the Manager was consistent in raising the concern that the move to the 2+ Room would make C more vulnerable. Accordingly, we find that the main aim of no longer allowing C to attend the Nursery was for the health, wellbeing and safety of C.

35.   Having determined that the Manager’s main aim for no longer allowing C to continue at the nursery was the health, wellbeing and safety of C and to a lesser extent also to manage the emotional upset and stress of the staff and the safety and wellbeing of the other children at the Nursery, we must determine whether these were ‘legitimate aims’.

Was the Aim Legitimate?

36.   On the face of it, ensuring the health, wellbeing and safety of C and their peers and managing the emotional upset and stress of staff are all good reasons for doing something, and we will discuss later whether they were proportionate reasons for no longer allowing C to continue at the Nursery, but were they legitimate or valid reasons? In order to answer this question, the tribunal have considered whether these aims related to problems or risks that actually existed or whether it was reasonable for R to consider them actual problems or risks.

37.   It appears to be undisputed that the Nursery staff were upset by witnessing C’s seizures and worried about C having further seizures. Accordingly, we find that there was a risk that existed here and the aim of managing that risk was legitimate.

38.   However, was there actually a risk to the health, wellbeing and safety of C and their peers and, if so, to what extent? We first considered what the Respondent meant by its reference to ‘wellbeing, health and safety’. Based on the evidence put forward, we have taken this to be a reference to emotional wellbeing and general physical health, which is to be considered separately to risk of injury due to safety concerns.

39.   Considering first emotional wellbeing, while the risk assessment mentions that witnessing a seizure coud have an impact on the other children, we do not have sufficient evidence of them being upset or there being any other risk to their emotional wellbeing to find that ensuring this is a valid or legitimate aim.

40.   With regard to Cs emotional wellbeing, the tribunal considered the view of C’s parents, which appeared to be that the best thing for C was to attend the Nursery full time. However, no evidence was put forward as to why this was best for C’s emotional wellbeing. The tribunal also notes that, from August 2023 to June 2024, C attended the Nursery 5 days a week for approximately 9 hours per day (outside of periods of sickness and holidays). The Nursery staff are, therefore, also likely to have a good idea about the best environment for C’s emotional wellbeing and their view appeared to be that, without 1:1 support, the Nursery was not the best environment for C. For the purposes of determining whether ensuring C’s emotional wellbeing was a valid aim, the tribunal accept the Nursery’s evidence in this regard. That is not to say C’s parents were wrong, but that there could be 2 opposing views on this, both of which could be valid. Accordingly, we find that ensuring C’s emotional wellbeing is a legitimate aim.

41.   Looking next at general physical health, it was not asserted that C attending the Nursery would impact upon the general physical health of C’s peers (excluding any risk of injury due to safety concerns), so it is assumed that ensuring this is not an aim that is relevant in the context of this claim.

42.   However, reference was made to the impact of attending the Nursery on C’s physical health. While the Nursery staff may not have known how attending the Nursery would impact upon C’s general physical health (excluding risk of injury due to safety concerns) they were clearly concerned about this. This is evidenced by the Manager’s request for a medical report. While a letter from Dr Lawrenson was provided in response to this request, it did not answer the Nursery’s specific concerns. At the Hearing, Dr Lawrenson stated that, while in the short term exposure to viruses might be worse for C’s physical health, in the long term it will be better as it will assist in building up C’s immune system. However, the tribunal are still not clear about the apparent contradiction between taking preventative antibiotics and the benefit of exposure to “bugs”. This is not to say there is not a good explanation, it is just that, as we do not understand the position, we accept that it was reasonable for the Nursery, having asked about it and not received a reasoned answer, to consider there was a risk to C’s physical health. This was, therefore, a valid concern of the Nursery staff at the time and ensuring it was a legitimate aim.

43.   Turning lastly to risk of injury due to safety concerns, in the tribunal’s judgment, the people who are best placed to assess this must be those who have day to day experience of both the Nursery and of caring for C and their peers; in other words, the Nursery staff. The tribunal found the Manager and Key Worker to be credible witnesses and accept their evidence that there were valid concerns in relation to the safety of C and their peers and ensuring this was, therefore, a valid aim.

44.   Prior to determining this, we considered the evidence of both parties in relation to the safety concerns and our findings on it are set out below:

(1)    The Manager gave evidence that when C moved to the 2+ Room they would be moving from an open plan room to an area that is divided into several sections. In addition, the staff ratios would reduce from 1 member of staff to 3 children to 1 member of staff to 4 children. The Key Worker expressed their concern that C could have a seizure in a secluded area of the room, which could go unseen [G93]. During the Hearing a video of the 2+ Room was shown and the Manager talked us through it with reference to the floor plan [E157(a)]. This illustrated that there were areas where a child could go unseen for a brief period, for example, in a tent or a toilet cubicle.

(2)    Ms Le Saint gave evidence that she visited the Nursery and observed that the opportunity for C not to be visible to the Nursery staff would be limited as she had seen staff in all areas of the room, with the cloakroom being the exception [G46]. At the Hearing Ms Le Saint stated she had viewed the Nursery environment for approximately 5 minutes prior to making this assessment. A 5 minute period of observation does not provide sufficient time to make this assessment and, even in this time, Ms Le Saint identified that there was one area where C may not be visible to Nursery staff.

(3)    Dr Lawrenson referred to the Nursery as a safe and appropriate place for C [C122]. He did not visit the Nursery or speak to the Nursery staff prior to forming this opinion, but he gave oral evidence that any nursery that complied with the relevant legal requirements, which he assumed the Nursery did, would be a safe and appropriate place for C. The tribunal do not find this to be sufficiently compelling to override the evidence of the Nursery on this point.

(4)    It was not disputed that all of the seziures C had during the period in which she attended the Nursery resulted in C either being admitted to the Jersey General Hospital or, on 4 occasions, being flown to Southampton. F accepted at the Hearing that there is a significant risk to C’s health if C has a seizure which goes unseen. He did not dispute that a seizure could result in serious injury or even death.

(5)    The Nursery’s risk assessment showed that 4 members of staff were required when C had a seizure [E124]: 1 to stay with C, 1 to administer medication, 1 to call the ambulance and 1 to wait outside to direct the ambulance to the nursery door. It is not clear why the person calling the ambulance could not do so from outside while waiting for the ambulance. However, even with 3 members of staff implementing the plan this would leave the ratio of staff to children in the Nursery significantly reduced, therefore, increasing the risk of other children going unsupervised and impacting upon their safety.

(6)    The parties seemed to agree that C had a seizure on average approximately once a month during the period she attended the Nursery. The Manager gave evidence that C was due to move into the 2+ Room in June 2024. In that room C would be exposed to 50 other children, as opposed to the 16 other children in the younger room, therefore, exposing C to more viruses [G79]. At the Hearing, Dr Lawrenson accepted that exposure to more children may increase the viral exposure, but also noted that viruses could also be caught elsewhere. The Key Worker explained that, in her experience, as the children in the older room were more mobile, touching more things, illness seemed to spread more amongst this age group. As C’s seizures were linked to C contracting viruses, the Nursery was concerned that C’s seizures would increase in frequency when she moved to the 2+ Room.

(7)    Dr Lawrenson gave evidence at the Hearing that, while they hoped C’s seizures would decrease in frequency with age, this was not guaranteed. There was no evidence that this information was shared with the Nursery at any stage.

(8)    The tribunal notes that other children can have seizures due to high temperatures and a document produced by the UK National Health Service stated that 1 in 30 children under the age of 5 experience such seizures [F102]. However, the likelihood of this happening in nursery is much lower as a child is less likely to be at nursery if they have a high temperature. In addition, one less member of staff would be required to deal with such a seizure as emergency medication would not need to be administered.

(9)    The tribunal accept that the greater the likelihood of a seizure occurring, the greater the likelihood of C or their peers being injured due a seizure going unseen or the reduced staff ratios, respectively.

(10) The tribunal have viewed the risk assessments prepared by both the Nursery [C117] and Cs new nursery [C146]. It is difficult to compare them as they use different risk assessment scales and reference different activities. In addition, different risks will be present in different environments and evidence on the new nursery environment has not been provided, for example, we do not know the size or layout of the new nursery. We were also not able to question the new nursery on how their risk assessment was prepared. The tribunal notes that the risk assessment prepared by the Nursery considers both the likelihood and severity of risk in relation to all activities to be towards the higher end of the scale and that the Manager gave evidence at the Hearing that the Nursery did not commonly prepare such comprehensive risk assessments. In addition, the tribunal has considered that the Nursery’s risk assessment was prepared shortly after C had experienced 2 seizures at the Nursery. The new nursery’s risk assessment appears to have been prepared prior to a seizure being witnessed as it states “a review will occur after [C]’s first seizure at nursery”.  Their risk assessment may, therefore, change once a seizure has been witnessed. The tribunal is of the view that someone who has witnessed a seizure is likely to be better placed to prepare a more accurate risk assessment. It would have been helpful for the tribunal to hear more evidence in relation to how risk assessment plans should be prepared, but this was not provided by either party. Accordingly, based on the information before it and on a balance of probabilities, the tribunal finds that the risk assessment prepared by the Nursery was appropriate.

45.   As the tribunal has found that the legitimate aim of excluding C from the Nursery was ensuring the wellbeing, health and safety of C and, to a lesser extent, managing the emotional upset and stress of the staff and the safety of the other children at the Nursery, the tribunal went on to consider whether no longer allowing C to attend the Nursery was a proportionate means of achieving this legitimate aim.

Was the Treatment a Proportionate Means of Achieving the Aim?

46.   When considering this, the tribunal had regard to the judgment of the EAT in the case of Birtenshaw v Oldfield [2019] IRLR 946, which considered section 15(1)(b) of the UK Equality Act 2010 (which mirrors the wording of Article 6(12)(b)) and which states as follows:

“37.      … the authorities on this objective balancing exercise show that to be proportionate the conduct in question has to be both an appropriate and reasonably necessary means of achieving the legitimate aim; and for that purpose it will be relevant for the Tribunal to consider whether or not any lesser measure might have served that aim …

38.       The tribunal’s consideration of that objective question should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly … . However it does not follow that the tribunal has to be satisfied that any suggested lesser measure would or might have been acceptable to the decision-maker or otherwise caused him to take a different course.”

47.   In addition, the tribunal noted the findings of the Jersey tribunal in the case of Christine Priaulx v Valla Limited [2019] TRE 201 when determining proportionality. In this case the tribunal concluded as follows:

“70.      Whether or not dismissing the Claimant or securing her performance was a legitimate aim, dismissing her in the circumstances as the Tribunal has found them to be could never be described as proportionate. This is for the simple reason that had a stand-up desk been provided and / or the trolley that was requested, that might have facilitated a return to work for the Claimant. It is of course true to say that it might not have resulted in that outcome. Importantly the Claimant will never know and in the view of the Tribunal she was absolutely entitled to.”

48.   It also considered the judgment in the case of Department for Work and Pensions v Boyers [2022] EAT 76, which states at paragraph 41:

“41.      In my judgment, in a case involving dismissal, the ET must undertake the balancing act required by section 15(1)(b) EqA by focusing on the outcome – the dismissal itself – but it remains open to the ET to weigh in the balance the procedure by which that outcome was achieved. It will be more difficult for a respondent to show that it acted proportionately when dismissing a disabled employee if, as happened in this case, it has led no evidence on how its decision-makers thought their actions would serve the legitimate aims relied upon. It will also be more difficult for a respondent to show that it acted proportionately when dismissing a disabled employee if it has led no evidence on how, as part of the process culminating in dismissal, its decision-makers considered other, less discriminatory, alternatives to dismissal. …

44.       … The question for the ET is whether the dismissal is appropriate and reasonably necessary to achieving the employer’s aims, weighing the reasonable needs of the employer against the discriminatory effect of the treatment. If suitable alternative work is available somewhere other than the place an employee is contractually obliged to be, there may be a non-discriminatory alternative to dismissal; and an employer’s failure to consider that alternative can properly inform the ET’s objective analysis.”

49.   Although all of the above cases relate to employees being dismissed, the tribunal considered the sections referenced above to be helpful when considering which factors it should weigh up when determining whether the actions of the Nursery were proportionate.

50.   The above cases indicate that the tribunal should primarily consider the outcome of R’s actions (C being excluded from the Nursery) and weigh the legitimate aim against the discriminatory effects of the exclusion on C. In addition, the tribunal should give a ‘substantial degree of respect’ to the judgment of R when considering what is reasonably necessary to achieve the legitimate aim. However, the tribunal can also take into account whether there were any less discriminatory actions that R could have taken and, if there were, it is not necessary to determine whether those lesser actions would have made a difference to the outcome.

51.   The tribunal has already discussed at paragraphs 38 to 44 above the potential risks of C remaining at the Nursery and, in particular has regard to the fact that, if C were to have a seizure at Nursery which went unseen, the outcome for C could be life threatening. The tribunal finds that it is possible a seizure could go unseen in the 2+ Room and, in the Nursery’s view, it is likely. It must be the case that, the more time C spends at the Nursery, the more likely this is to happen. Accordingly, the tribunal is of the view that some action would be proportionate. The question is, was the action that was taken (no longer allowing C to continue at the Nursery) proportionate?

52.   The tribunal next went on to consider whether there was any adverse effect on C of being excluded from the Nursery. When doing so it noted the following:

(1)    C’s last day at the Nursery was Friday 14 June 2024 and she started at her new nursery 4 days per week on or around Monday 17 June 2024 and 5 days per week on or around 22 July 2024. Accordingly, there was no period in which C was not in a nursery environment for at least 4 days a week as a result of not being allowed to continue at the Nursery. The tribunal is not persuaded that it was in any way detrimental to C to be in a nursery environment only 4 rather than 5 days per week.

(2)    M gave evidence at the Hearing that C had 2 close friends at the Nursery that C no longer saw after she left. However, no reason was given as to why C could not see them outside the Nursery, in fact, F stated that the friendships he and M had formed with some of the parents from the Nursery had continued to grow after C left [G14]. In addition, starting the new nursery would have given C the opportunity to make new friends. Accordingly, the tribunal has not seen sufficient evidence to demonstrate the C lost any friends or suffered any hurt and distress in this regard.

(3)    The tribunal accept that the situation may have caused a great deal of stress and upset to all of the adults involved and that any change in a child’s situation, particularly a child with epilepsy, may cause a great deal of worry and concern for their parents, but no evidence was put forward to demonstrate that any upset of the adults involved was impacting upon C in any way.

(4)    F states in his witness statement that C had an excellent standard of care at the Nursery [G14] and C was thriving there [G9]. He further stated that when C suffered seizures at the Nursery the care was exemplary [G14]. M explained that they selected the Nursery for C as it was conveniently located and they particularly liked its values and the opportunities it would offer C [G18]. It does not appear to be disputed that excluding C from the Nursery was unfavorable treatment; it removed the option of C attending the Nursery at which C was thriving. This would, therefore, be considered a detriment.

(5)    While it is not determinative of the issue, as C’s parents were able to secure an alternative nursery place for C, the tribunal notes that, if other nurseries were to have taken the same approach as R, this could leave C without any nursery place. This is particularly the case in an island like Jersey where there are a limited number of nurseries available. However, the Manager gave evidence that, just because the 2+ Room was not an appropriate nursery environment for C, not all nursery environments would be the same. In fact, C was accommodated by the Nursery in the room they attended before turning 2.

(6)    The tribunal further notes that there is a difference between a privately run nursery and a school, and the detriment of not being able to attend nursery is not equal to that of not being able to attend school. In addition, the risks of attending school are likely to be different. The proportionate actions of a school would, therefore, differ to those of a nursery.

53.   Accordingly, the tribunal considers that, while there was some detriment suffered by C, in that C was no longer able to attend the Nursery at which C was thriving, it was limited as C was able to start at another Nursery straight away. That said, the tribunal is mindful that, as set out in the wording of article 6(12)(b), it is for R to show that its actions were proportionate. We have, therefore, gone on to consider whether there were any less discriminatory actions that R could have taken prior to excluding C from the Nursery. When doing so the tribunal has taken account of the following:

(1)    Dr Lawrenson gave his opinion that C should attend nursery “in the normal way”. However, we are not clear what is meant by “in the normal way”. While there may be a “normal way” in which children attend school, the Nursery is not a school. At age 2 some children attend nursery full time, some part time and some not at all. C attended the Nursery full time, but the Nursery gave evidence that the majority of children attended part time. When asked why he thought it was in C’s best interests to attend nursery full time, rather than part time, or instead be looked after by a nanny or their parents and be exposed to other children, for example, through playgroups or other toddler classes, Dr Lawrenson explained that it was important for C’s parents to choose what is right for their family.

(2)    It appeared important to C’s parents that C attended nursery full time. This was apparent as when questioned about the time that C had off before starting at the new nursery. M initially indicated C had 4 weeks out of nursery when, in fact, it was only a few days, over a weekend, before C started at the new nursery 4 days a week, but approximately 4 weeks before she started 5 days a week. No reason was given by C’s parents as to why it was in C’s best interests to attend nursery full time.

(3)    The wishes of the parents are, of course, important, but the views of other primary care givers should not be disregarded, particularly experienced professionals in the relevant field. While C’s parents wanted C to attend the Nursery full time, the Nursery did not think C should attend at all without 1:1 support. No compromise was offered by either party. It is the tribunal’s view that alternatives could have been considered, which might have allowed C to continue at the Nursery.

(4)    For example, either party could have enquired about whether JCCT could offer part time 1:1 support, the parties could then have discussed how the remaining time could be managed. Perhaps the Nursery could have managed some of the time without 1:1 support, or had more of its own staff available at certain times. Alternatively, perhaps C could have attended the Nursery part time or more parental support could have been offered in some way. In addition, if the Nursery was not content with the medical report from Dr Lawrenson, it could, perhaps, have sought some independent medical guidance. The Nursery gave evidence that it enquired about how other nurseries in Jersey supported children with epilepsy, but recieved no response. Those enquiries could also have been followed up.

(5)    The Nursery initiated the JCCT request form and F suggested amending it, but neither party followed up on this. The Nursery requested a medical report from C’s parents and, after some time, one was provided which did not answer the Nursery’s concerns. Again, neither party followed up on this.

(6)    If the Nursery had followed up on the JCCT request or the medical report, or sought to pursue a different solution to achieve their aim, there is no guarantee that C’s parents would have engaged with the Nursery and considered a compromise, but the Nursery did not put forward evidence to show C’s parents would not have done so.

(7)    At the Hearing, the Manager said that, while the Nursery felt that full time 1:1 JCCT support would have been best, this was not to say that they could not have come to some form of compromise.

54.   Ultimately it was R that made the decision to exclude C from the Nursery without doing anything further to seek to achieve an alternative solution. It is the tribunal’s view that the Nursery could have offered more alternatives for C’s parents to consider and, while they may not have succeeded in allowing C to remain at the Nursery, C’s parents on behalf of C were entitled to be given further opportunity to try to facilitate this.

55.   It is for R to show that its actions were a proportionate means of achieving a legitimate aim. As the tribunal is of the view that there were more proportionate means that the Nursery could have tried to achieve its legitimate aim. The tribunal finds that excluding C from the Nursery was not a proportionate means of achieving the Nursery’s legitimate aim. Accordingly, this constitutes discrimination arising from disability.  

Reasonable Adjustments

56.   The provision of the Law that is relevant to the claim of failure to make reasonable adjustments is Article 7A(3) which states:

“(3)             If a disabled person (“the subject”) would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled, a person (“the person”) discriminates against the subject if the person fails to take such steps as it is reasonable to take to provide the auxiliary aid. ...

57.   It does not appear to be disputed that C no longer being allowed to attend the Nursery would be considered a substantial disadvantage for the purposes of article 7A(3) of the Law. The tribunal must, therefore, consider:

(1)    whether there was an auxiliary aid which would prevent C from no longer being allowed to continue at the Nursery; and

(2)    whether the Respondent failed to take reasonable steps to provide that auxiliary aid.

58.   The Respondent’s representative submits that there are no reasonable adjustments, or auxiliary aids, that could have been made or provided that would have been effective, practical or within its resources. The Respondent identified that one to one supervision would have avoided the posed risks, and sought to achieve this for C, but C’s parents did not assist in trying to obtain this.

59.   C’s representative assert the following are auxiliary aids which the Respondent could have provided to enable C to continue at the Nursery:

(1)    continuing to implement C’s epilepsy action plan as they already were;

(2)    managing the concerns and emotions of staff caring for C; and

(3)    preparing a more appropriate risk assessment plan.

60.   There is no suggestion that, had C continued at the Nursery, the Nursery would not have continued to implement the epilepsy action plan. As C did not continue at the Nursery, it was not possible to continue to implement the action plan. It may be argued that this adjustment was not able to be made as the Nursery was no longer allowing C to attend, but the proper claim in relation to this is the article 6(12) claim referred to above. The 7A(3) claim cannot be successful as continuing to implement the action plan on its own would not prevent the substantial disadvantage.

61.   With regard to managing the concerns and emotions of the staff, the tribunal does not find that there was any failing in this regard. The tribunal accept the evidence of the Key Worker that she felt very supported by the Manager. The Key worker also stated that counselling was suggested but that she, and the other Nursery staff, did not think this would help. The Key Worker asserts that the staff wanted reassurance from the medical team and, whilst they were given training and told that they had dealt with C’s seizures very well in the past, they were not given reassurance in relation to the impact moving into the 2+ Room would have on C’s medical condition. While the Nursery asked C’s parents to provide this, they did not recieve a reasoned response.

62.   In any event, even if the concerns and emotions of the staff had been managed in some other way, this was not the main reason that C was no longer allowed to attend the Nursery. Accordingly, managing the concerns and emotions of the staff would not have addressed the main reasons related to the wellbeing and health of C or the safety of C and their peers and so would not have prevented the substantial disadvantage.

63.   Finally, considering the risk assessment plan prepared by the Nursery, the tribunal found above (see paragraph 44(10)) that this was appropriate and, therefore, there is no failing in respect of this.

64.   Accordingly, the claim for failure to take reasonable steps to provide an auxiliary aid under article 7A(3) fails and is dismissed.

Remedies

65.   Article 42 of the Law states:

“(1)             Where the Tribunal finds that a complaint is well-founded, it may do one or more of the following –

(a)              declare the rights of the complainant and the respondent in relation to the act to which the complaint relates;

(b)              order the respondent to pay to the complainant compensation for any

(i)               financial loss, in an amount not exceeding £10,000, and

(ii)              hurt and distress, in an amount not exceeding £5,000,

provided the sum of any award made under sub-paragraph (b)(i) and (b)(ii) does not exceed £10,000 ...”

66.   The Respondent’s representative notes that Article 42(1) states the tribunal “may do one or more of the following” when talking about remedies for discrimination and asserts that the tribunal’s powers in this respect are discretionary.

Award

67.   On behalf of C, a claim for £2,500 compensation for hurt and distress as a result of discrimination is made. C’s representative references the loss of important friendships C had made, but also notes that, due to C’s age, C cannot give evidence about how she felt. The Respondent’s representative asserts that, as there is no evidence of injury to feelings, no award should be made.

68.   Article 39 of the Employment and Discrimination (Procedure) (Jersey) Order 2016 (the “Procedure Order”) provides:

“The matters that the Tribunal may take into consideration in determining amounts of compensation for hurt and distress under Article 42(1)(b) of the Discrimination (Jersey) Law 2013 when a complaint of discrimination has been found by the Tribunal to be well-founded include –

(a)     the extent to which there has been a campaign of discrimination or harassment;

(b)     whether the discrimination caused the person to lose his or her job;

(c)     the seriousness of the discrimination; or

(d)     the length of time that the discrimination continued.”

69.   In the case of Flanagan v Island Greetings Ltd 147/2015, the tribunal made the following observations about awards of compensation:

“117.    As this is the first case in Jersey where an award of compensation for hurt and distress has been considered by the Tribunal, it has looked to the English Employment Tribunal decisions for some guidance on the factors that it should take into account in reaching its decision. The Tribunal notes that the Equality Act 2010 (the English law) refers to compensation for ‘injury to feelings’ which is broader than the compensation for ‘hurt and distress’ allowed under the Discrimination Law.

118.     Notwithstanding that difference the Tribunal notes with approval the case of Armitage (1), Marsden (2) and Prison Service (3) v Johnson [1997] IRLR 162 where the EAT established the following principles that should be applied by Tribunals when determining the level of awards for injury to feelings:

(1)  Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the discriminator. The Tribunal should remain objective of their personal feelings of indignation at a Respondent’s conduct.

(2)  Awards should not be too low, as that would diminish respect for the policy of anti-discrimination legislation. The Jersey legislature has condemned discrimination and awards must ensure that it is seen to be wrong. However awards should be restrained since awarding sums of compensation  which are generally felt to be excessive can do almost as much harm to the policy, and the results which is seeks to achieve, as awards that are too low.

(3)  Awards for injury to feelings should bear some broad similarity to the range of awards in personal injury cases. This should be done by reference to the whole range of such awards rather than to any particular type of personal injury award.

(4)  Tribunals should bear in mind the value in everyday life of the sum that they have in mind. This may be done by reference to purchasing power or earnings.

(5)  Tribunals should remind themselves of the need to maintain public respect for the level of awards made.

119.     The Tribunal has also noted the guidance provided by the Court of Appeal to tribunals in England on the assessment of the amount of compensation in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102. In that case their Lordships set down three bands of compensation in the injury to feelings award with each band appropriate to the seriousness of the discrimination in question:

(1)  The top band should only apply to the most serious of cases, such as where there has been a lengthy campaign of discriminatory harassment because of the Applicant’s sex or race.

(2)  The middle band should be used for serious cases which do not merit an award in the highest band.

(3)  Awards in the lowest band are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general very low awards should be avoided, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

120.     The Tribunal has noted that the Court of Appeal in Vento, above, said that there is ‘considerable flexibility within each of the Bands identified above, allowing Tribunals to fix what they consider to be fair, reasonable and just compensation in the particular circumstances of each case’.

121.     The Discrimination Law states that the Tribunal may not award more than £5000 for ‘hurt and distress’ when a complaint of discrimination is ‘well founded’. This is considerably less than the amount of compensation available to the English Tribunals in respect of ‘injury to feelings’ following an act of discrimination but the Tribunal believes that it is still useful to set out the amounts that it considers will form the bands of compensation for any ‘hurt and distress’ suffered in successful discrimination cases before it in the manner described in Vento above. Accordingly the Tribunal will consider the three bands of compensation for hurt and distress to be as follows:

(a)  The top band, for the most serious cases, will normally be between £4,000 and £5,000;

(b)  The middle band, for serious cases which do not fall in the top band, will normally be between £1,500 and £4,000; and

(c)  The lowest band, for less serious cases, will normally be between £500 and £1,500. The Tribunal is aware that an applicant may consider sums of less than £500 to be derisory compensation for the hurt and distress that they suffered following an act of discrimination, when the value of that sum in everyday life is taken into account, and for that reason the Tribunal will endeavour to avoid awarding less than £500 or indeed make no award for hurt and distress at all if the circumstances deem it appropriate to do so.”

70.   The above considerations have been adopted by this tribunal a number of times in the past, including in the recent decision in the case of Vincenzo De Tommaso v The Greenhill Consultancy Limited [2023] TRE 185A.

71.   While the tribunal has found that being excluded from the Nursery caused some detriment to C, as it removed the option of C attending the Nursery at which C was thriving, the tribunal has not found that it caused any hurt and distress to C (see paragraph 52(2) to (4) above). The authority conferred upon the tribunal by article 42(1)(b)(ii) of the Law is to award compensation for hurt and distress. As we have not found that C suffered any hurt or distress, we do not think that it is appropriate to make any award.

72.   As the authorities referenced above are relevant to determining the amount to be awarded for hurt and distress, they are not strictly relevant in a situation where there is no hurt and distress. However, we believe it is useful to apply some of the considerations set out in those authorities to the facts of this case, in any event, prior to concluding on this point. We now do so as follows:

(1)    There was no campaign of discrimination or harassment, nor did it last for a period of time (see the considerations under article 39(a) and (d) of the Procedure Order). It was a standalone act of discrimination in relation to something arising from a disability.

(2)    Awards “should be just to both parties. They should compensate fully without punishing the discriminator” (Flanagan paragraph 118(1)). In this case the tribunal has not found there is any hurt and distress to compensate and it notes that the purpose of the award is not to punish the discriminator.

(3)    “The Jersey legislature has condemned discrimination and awards must ensure that it is seen to be wrong” (Flanagan paragraph 118(2)). This is not a case in where the discriminator was intentionally discriminatory or even reckless or careless as to whether their actions were discriminatory. Even F recognised that the Manager believed they were acting in C’s best interests (see paragraph 32(15) above). We also recognise that being a Respondent in a discrimination claim, going through the tribunal procedure and being found liable for a claim of discrimination will constitute a degree of punishment in itself.

(4)    “The Tribunal will endeavour to avoid awarding less than £500 or indeed make no award for hurt and distress at all if the circumstances deem it appropriate to do so” (Flanagan paragraph 121(c)). In this case, for the reasons set out above, the tribunal is of the view that it is appropriate to make no award at all.

Declaration

73.   A declaration that “the Respondent did not have the right to exclude [C] from the Nursery because of [C’s] disability” is also sought on behalf of C. C’s representative confirmed at the Hearing that this declaration could form part of the judgment.

74.   The Respondent’s representative notes that this has been a very fraught period for everyone involved, in particular, of course, C’s parents, but also the Nursery staff. They assert that the declaration sought, on top of a finding of discrimination, would be of no measurable benefit to C. However, it would cause unjust and disproportionate injury to the Nursery and, if it suffered adverse financial consequences and was forced to cut back on its provision, to its staff and the children who attend.

75.   The tribunal considers that a declaration in the terms requested by C’s representative does not relate to the claim that has been brought, which is for discrimination because of something arising from C’s disability. There was never any claim that the Nursery discriminated against C simply because C has epilepsy. A declaration in such simplistic terms would imply that R did this and would, therefore, be unjust.

76.   However, the tribunal is of the view that a declaration in the terms set out at the top of this judgment does relate to the claim that has been brought and succeeded, and may be of some benefit to C in the future, without causing disproportionate harm to R, or indeed any harm over and above the judgment itself. Accordingly, following article 42(1)(a) of the Law, the tribunal has made the declaration set out at the top of this judgment.

Conclusion

77.   For the reasons set out in the Discrimination Arising section above, the tribunal has determined that C was not allowed to continue at the Nursery due the Nursery’s concerns about the impact that the seizures C suffered, as a consequence of epilepsy, had upon C’s wellbeing, health and safety and the safety of C’s peers at the Nursery. The tribunal has also found that there were other, more proportionate measures that the Nursery could have offered to deal with those concerns, prior to excluding C from the Nursery.  Accordingly, the tribunal has found there was discrimination arising in accordance with article 6(12) of the Law.

78.   The tribunal notes that it did not find any intention to discriminate and that the decision makers at the Nursery were acting in what they believed to be the best interests of C. In addition, it is the tribunal’s view that the outcome for C may have been different had the other adults involved in the matter also done things differently.

79.   However, that does not change the fact that it was R that made the decision to exclude C from the Nursery without doing anything further to seek to achieve an alternative solution. If an alternative solution had been offered, there is no guarantee it would have been accepted, but C’s parents should have been given further opportunity to agree to a solution that enabled C to stay at the Nursery. If they were offered such an opportunity but chose not to take it, without good reason, then R may have been able to show that excluding C from the Nursery was a proportionate means of achieveing a legitimate aim and there may have been no discrimination arising.

80.   The tribunal further notes that every discrimination claim is based on different facts and each claim must be determined on its own facts. Based on the facts of this case, the tribunal has found that there were more proportionate measures that could have been taken. This may not always be the case.

81.   For the reasons set out in the Reasonable Adjustments section above, the tribunal has not found that there was a failure to make reasonable adjustments and there was no discrimination in accordance with article 7A of the Law.

82.   For the reasons set out in the Remedy section above, the tribunal has determined that no monetary award should be made, but there should be a declaration of C’s rights and this declaration is set out at the top of this judgment.

 

Mrs H Westmacott, Deputy Chairman                                            Sent to the parties on: 18 March 2025