Clyde & Co successfully defend dental practice in yet another novel claim under the Equality Act 2010

Clyde & Co were instructed by a dental practice to represent them in a claim brought by the Claimants, a Mum and her 8 year old son, who were both NHS patients of the practice. 

It was alleged that the dentist directly discriminated against the son in December 2020 as a result of his alleged disability (a speech and language impairment) which meant that he was unable to describe pain. It is alleged that the dentist withheld treatment as a result of his disability, failed to make reasonable adjustments and inappropriately referred him to another dental practice because of his disability.

The Mum’s claim was one of alleged victimisation. She alleged that the dental practice made derogatory remarks about her and then excluded her from the Practice because she alleged disability discrimination against her son. 

The law

The Claimant must prove that he was disabled within the meaning of s6 of the Equality Act 2010 so as to engage the Act. 

In order to succeed in a claim for direct discrimination under s13 of the Act, the burden is then on the Claimant to prove that (a) he has been treated unfairly; (b) the reason he has been treated unfairly is because of his protected characteristic; and (c) as a result, he has suffered injury to feelings. 

In order to succeed in a claim for failure to make reasonable adjustments under s20 of the Act, the Claimant must identify (a) the PCP (provision, criterion or practice) which (b) placed him at a substantial disadvantage compared to a non-disabled person, and (c) the nature and extent of that substantial disadvantage. If these features are identified and proven, consideration turns to reasonableness of the proposed adjustment in order to prevent the PCP putting the Claimant at a substantial disadvantage.

In order to succeed in a claim for victimisation under s27 of the Act, the Claimant (Mum) must prove that she was treated unfairly because she complained about discrimination. 

Outcome

Liability was denied for both claims based on the clinical records and factual evidence from the dentist and the practice manager. 

The appointment in December 2020 was booked for a 15 minute emergency assessment appointment only, during the Covid-19 pandemic. It did not allow time for treatment to be performed. If treatment was required, a further appointment would be offered. This was explained to both Claimants. It was not in any way discriminatory as the same information would have been given to any patient in the son’s position. The dentist offered a further appointment for treatment at the Practice (extraction), but Mum refused and requested that her son be referred to hospital for treatment. The dentist agreed to make an onward referral and gave appropriate and reasonable safety netting advice. 

As for Mum’s claim, the reason she was excluded from the Practice was because of her aggressive behaviour towards staff. 

Following an allocation hearing in which we successfully argued for the claim to be allocated to the multi-track and obtained permission to rely upon dental expert evidence, the Claimants discontinued their claims.

Case comment

This successful defence is just one example of Clyde & Co’s significant experience in supporting the healthcare provider throughout these difficult cases and achieving a discontinuance/dismissal.