A mother whose 16 year old daughter (M) was made to leave Gordonstoun School after being caught having sex with a male pupil, has failed in a claim of unlawful discrimination against the school based on M having a disability in the form of attention deficit hyperactivity disorder (ADHD).

M and the male student had been in a relationship for some time. The intercourse, which was pre-planned through an exchange of emails, took place on a teacher's desk in the early evening. Emails disclosed previous acts of intimacy. Both were suspended immediately and two days later the principal decided that both would have to leave the school, which had clear rules against any acts of sexual intimacy.

M's mother, JC, brought a case to the Additional Support Needs Tribunal for Scotland (ASTMS), which rejected it, not being satisfied that M was disabled within the meaning of s 6(1) of the Equality Act 2010: it was not satisfied that her mental impairment had a substantial and long term adverse effect on her ability to carry out normal day to day activities. In any event it was not satisfied that there was a causal link between her ADHD and her sexual activities.

On appeal it was argued that the tribunal had applied too restrictively the judicial guidance in assessing disability, had failed to have regard to the expert evidence and had failed to give adequate reasons for its decision. On the evidence, M's condition had a substantial adverse effect on her day-to-day functioning; the tribunal failed to have regard to difficulties she was having at school and the effect of her medication.

The court's opinion refusing the appeal was delivered by Lady Smith, who sat with Lords Brodie and Malcolm. Not every person with a mental impairment was disabled for the purposes of the 2010 Act, she said: that was only the case if it is established that the impairment was “at a level which amounts to a substantial and long term adverse effect on normal day-to-day activities”. The onus was firmly on the person seeking to advance a claim of discrimination.

The decision challenged was one of an expert tribunal, but it was not an inquisitorial tribunal: it had to reach a decision on the case that the parties put before it, and its conclusions on the evidence should be given respect unless it had misdirected itself.

There had been no evidence as to the likely effect of M's medication, and the tribunal was entitled to prefer evidence that M had no significant abnormality. The tribunal's reasoning was briefly but clearly stated, and comprehensible in the context where M did not seek readmission to the school.

“ASNTS is a tribunal where... the emphasis is on informality and flexibility, where the norm is that decisions are to be issued promptly without elaborate reasons”, Lady Smith said. “It is enough that the reasons are intelligible and enable the reader to understand why the tribunal decided as they did and what conclusions were reached on the principal issues in the case. These reasons serve that function.”

Further, the tribunal had given cogent reasons for concluding that causation was not established. “We agree with counsel for the respondent that the appellant’s criticism amounts to saying that poor judgment is an aspect of ADHD, having sex on 4 March 2013 was poor judgment and therefore, causation is established but, plainly, that would not have been enough to establish the requisite causal link”, Lady Smith stated. “In the modern world, all too often teenagers exercise poor judgment in sexual matters. It is widespread. It is, sadly, a fact of life. The vast majority do not have ADHD. Further, M was an adult with full capacity. Adults do follow their very natural human desires to engage in sexual activity. There would need to have been clear and cogent evidence to support the claim that, in M’s case, this was not ordinary teenage behaviour but was a consequence of her ADHD.”

Further submissions about the school's code of conduct, and reasonable adjustments, were also rejected.

Click here to view the opinion of the court.