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The "Code"
means the 2007 Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to EHRC website). Section references |
This page outlines rules prohibiting disability discrimination by trade and professional qualifications bodies, such as the General Medical Council, Law Society, Public Carriage Office or CORGI.
These rules came into effect on 1st October 2004. There is more detail in the Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to EHRC website), Sept 2007. Below I call this 'the Code'.
Broadly, qualifications bodies are bodies which can confer a professional or trade qualification, such as the General Medical Council, the Law Society, the Public Carriage Office or CORGI, unless already covered by the Part 4 education provisions (new sections 14A and 14B)
More general qualifications such as GCSEs and A-levels are covered not by these provisions but by rules on examining boards generally.
For more on what counts as a trade or professional qualification, see paras 8.5 - 8.8 of the Code.
Perhaps the most important part of the rules relates to examination requirements. Basically, one needs to distinguish between competence standards on the one hand, and means of assessing them on the other. The normal duty to make reasonable adjustments applies to the process of assessing a competence standard, but not to the question of whether the standard can be applied. A user-friendly (I hope) outline of these rules with examples of possible adjustments, in the context of the very similar rules applying to universities, is Oral assessments, and assessed presentations.
On the question whether a particular standard can be applied, there is a special 'justification' test. Note, however, that claims here will be more difficult if the House of Lords decision in Malcolm v London Borough of Lewisham (June 2008) is held to apply. This is because the 'justification' test is only relevant if there is 'disability related discrimination', and that case limits the scope of disability related discrimination. However, assuming this case does not affect the rules for qualifications bodies, so that the claimant can show 'disability related discrimination', it is for the body to try and justify its competence standard. To do this, the body must show that:
There is discussion of this justification test in para 8.36ff of the Code. Also, 'direct discrimination' can never be justified (see below.) The idea is that it is highly desirable for qualifications bodies to able to apply one professional standard, applying equally to all applicants, rather than being obliged to adjust that standard on a case-by-case basis. But the standard must meet the special test. For 'What is a competence standard?' see para 8.27ff of the Code.
When it comes to how the competence standard is assessed, eg whether orally or in writing, or how long should be given for an oral exam, reasonable adjustments may be possible (para 8.30ff and 8.20 of the Code). The other general rules also apply - such as those on less favourable treatment and harrassment (see next heading) .
The nature of the competence standard - assuming it is 'justified' under the test above - may place constraints on how it can be assessed. For example, ability to speak a language can only be tested orally, not in writing (see example in box).
Paragraph 8.20 of the Code gives examples of cases where it would or would not be reasonable to give more time for a written examination (see also 8.33). In particular it would not be reasonable where speed of writing is a competence standard, such as when shorthand is being tested.
Presumably similar principles are relevant when deciding whether to give more time for a spoken examination. Firstly, though, any competence standard regarding speed/fluency etc of speech would need to meet the 'justification' test, and so be a proportionate means of achieving a legitimate aim. Secondly, assuming the standard is 'justified', it could be argued that the assessment should aim to look at how the candidate's speech would actually be in the job, given that exams are an artificially stressful situation. The tribunal decision in Wakefield v Land Registry may be helpful; it found that where the stammer was a particular problem in job interviews, then an interview was not a valid way to test how the individual would perform in the workplace. Also see this Ohio firefighter case, where speech was fine at a fire but not in interview.
There are examples of possible reasonable adjustments in Oral assessments, and assessed presentations. Also on medical exams, see this U.S. case: Hartman v National Board of Medical Examiners.
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Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies. Para. 4.37 |
Unless resolved through grievance procedures, disputes can normally be taken to an Employment Tribunal (subject to a time limit). ACAS can get involved to conciliate. However the Employment Tribunal is not used where a statutory appeal is available, such as in the case of the General Medical Council.
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© Allan Tyrer 1999-2008
Last updated 12th October, 2008
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