A Jersey nursery unlawfully discriminated against a two-year-old child with epilepsy by excluding them from attendance due to concerns about seizures, a tribunal has ruled.
But the Employment and Discrimination Tribunal decided that the nursery did not need to provide compensation for “hurt and distress”, with the panel ruling that decision-makers had been “acting in what they believed to be the best interests”.
The case came to light this week in a published judgment in which the nursery has not been named so as to protect the identity of the child, who is only referred to as ‘C’.
C started at the nursery in 2023 when they were aged just 14 months old and soon after experienced seizures triggered by viruses.
In the first week at nursery, C suffered a severe seizure and was flown to Southampton’s Paediatric Intensive Care Unit. Over the following months, further seizures occurred, including two in a single month in early 2024.
Shortly before C’s second birthday, the nursery’s manager wrote to the child’s parents informing them that C’s place would be terminated two months later. The decision coincided with C’s upcoming move into a busier, less open-plan room for older children.
The tribunal heard that the nursery’s concerns related to the safety risks posed by the new environment. There, staff ratios would be lower, and it might be harder to monitor C at all times, the tribunal heard.
A risk assessment was undertaken, and it concluded that one-to-one support would be required to keep C safe.
C’s parents opposed the request for full-time one-to-one support, stating they did not believe it was necessary.
Rather than exploring alternative options further with the parents, the nursery ultimately served notice on C’s place.
Considering the facts of the case, the tribunal decided that the exclusion had occurred based on the seizures arising from C’s disability, which, in turn breached the Discrimination Law.
“The reason given by [the nursery] for deciding not to allow C to continue to attend… is so closely linked and, in fact, dependent on C’s seizures that they must have had a significant influence on the thought process,” the panel recorded in their judgment.
Although the tribunal accepted that the nursery’s concerns for C’s safety and wellbeing were genuine and constituted a “legitimate aim,” it found that excluding the child outright was not a proportionate way of achieving it.
“[The nursery] made the decision to exclude C from the nursery without doing anything further to seek to achieve an alternative solution,” the panel said.
“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.”
The panel acknowledged the emotional and operational impact the seizures had on staff, with evidence showing that episodes were distressing and logistically complex to respond to. The nursery required up to four staff members to manage a seizure safely.
However, the tribunal noted that the nursery had not proven it had exhausted other possible mitigations, such as partial funding for one-to-one support, reduced hours, or additional medical guidance.
The claim also included an allegation of failure to make reasonable adjustments. This was dismissed by the tribunal, which found that the nursery had not failed in managing staff concerns or in preparing a risk assessment, and that continuing to implement the child’s epilepsy plan alone would not have removed the substantial disadvantage.
Despite finding that discrimination had occurred, the tribunal decided against imposing a penalty or making a monetary award.
C’s parents had sought £2,500 for hurt and distress, but the panel found no direct evidence that the child had experienced harm or emotional suffering from the exclusion.
It added that the disruption to C’s care had been minimal, as the child started at a new nursery within days.
While losing a place at a thriving nursery was a “detriment”, the panel said that it had not resulted in a gap in care or significant emotional harm.
Instead of compensation, the tribunal made a declaration recognising that C had the right not to be excluded due to something arising from their disability.
Advocate Vicky Milner, of Viberts, represented the parents in the case.
Reflecting on the result, the firm noted: “While every case is fact-specific, this decision is of considerable importance.
“It highlights the need for all service providers (including but not limited to schools and nurseries) to address the question of whether refusing or ceasing to provide a service to a person with a disability could constitute unlawful discrimination.
“It also provides useful guidance in terms of steps that the nursery should have considered, such as looking at alternatives to exclusion and seeking independent medical guidance.”
The family described the process of bringing the discrimination claim to the tribunal as “challenging”.
They said they were “extremely grateful” to Advocate Milner and her team for the support.
