Scouts appeal against finding of disability discrimination in respect of an autistic child dismissed
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Master Michael Wheeler-Ashurst, an autistic child and aged 11 at the time, was subjected to unlawful discrimination by the Scout Association (“Scouts”), when he was removed from a variety show involving singing and dancing, referred to as the Gang Show. Following an appeal by the Scouts, the County Court has affirmed the trial judge’s finding of failure to make reasonable adjustments under Part 7 of the Equality Act 2010.
Michael had attended rehearsals on regular basis between December 2018 and April 2019. On Sunday 7 April 2019, Michael’s mother notified the Scouts to inform him that Michael would be late to the rehearsal that day because of a rugby session. The Scouts made clear that if Michael did not attend at the start of the rehearsal session, he would lose his place in the Gang Show. In other words, the PCP was a requirement to attend the start of the final Sunday rehearsal and an immediate sanction of losing his place in the Gang Show if this was breached.
Michael was unable to attend for the start of the rehearsal and so was removed from the Gang Show altogether, despite the fact that the final performances, with associated activities for all participants, were only due to take place the following week. The trial judge held that there was a failure to make reasonable adjustments. Michael was awarded £8,000 for injury to feelings.
On appeal before HHJ Holmes, the Scouts argued, inter alia, that Michael had not been put at a substantial disadvantage compared to non-disabled members of the Gang Show because his mother had made a choice to attend rugby instead. The Scouts also argued that the trial judge was wrong to conclude in her evaluation that reasonable adjustments were possible.
On the issue of choice, the Court, on appeal, found that the Scouts both on appeal and at trial failed to focus on the PCP as the Claimant had pleaded it. The PCP required consideration of the sanction, namely removal from the Gang Show, and the effect that it would have on an autistic child. The change is routine was not the attendance at rugby rather than the Gang Show, rather it was the change in Michael thinking he was going to be participating in the Gang Show for a full week and then discovering he was not. Viewed in those terms, having recognised that autistic people have processing difficulties which make sudden changes in routine more difficult to cope with, the Court held that there was a substantial disadvantage. Indeed, HHJ Holmes noted that “to present this as a simple choice is simplistic at best” (§26).
Finally, the Court upheld the trial judge’s conclusion that the Scouts failed to make reasonable adjustments. It emphasised the well-known position that an appeal court should not carry out the balancing exercise for itself but rather ask whether the decision was wrong and noted that this was particularly true in circumstances where the trial judge has sat with an Equality Act Assessor (§34). The trial judge’s findings that reasonable steps could have been taken to avoid Michael suffering such a sudden change in his routine, including allowing him to attend later and be orientated at subsequent rehearsals, were upheld. On appeal the Court highlighted the non-negotiable stance of the producer of the Gang Show and observed that “to have no exceptions to a hard rule will almost inevitably lead to unfairness and discrimination” (§29).
