10 years of stammeringlaw 1999-2009
Home Overview Disability Discrimination Employment Services Education PSED Benefits Business Advice Links More...
These pages do not apply outside the United Kingdom.

Employment: Trade and professional qualifications bodies

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The " 2007 Code"
means the 2007 Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to EHRC website).

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.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

The rules on trade and professional qualifications bodies came into effect on 1st October 2004. They are now in the Equality Act 2010, with a few changes. The most important change addresses difficulties under the previous DDA in claiming that it was unjustified to apply a particular competence standard.

There is as yet no Code of Practice for these rules under Equality Act 2010. However, there is useful discussion in the previous Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to EHRC website), Sept 2007. Below, I call this 'the 2007 Code'.

What are 'qualifications bodies'?

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. The definition of a qualifications body is in s.54 EqA.

Non-professional qualifications such as GCSEs and A-levels are covered by the rules on examining boards generally.

Competence standards

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 similar rules applying to universities, is Oral assessments, and assessed presentations.

Whether a particular competence standard can be applied

The only basis on which the application of a particular competence standard can be challenged is 'indirect discrimination' - see EqA s.53(7) (link to legislation.gov.uk). Broadly, there is indirect discrimination where the qualifications body applies a competence standard to people generally. but the standard puts people with a disability (including the claimant) at a particular disadvantage in comparison with people who do not have that disability, and the body cannot show that the standard is a proportionate means of meeting a legitimate aim (the 'objective justification' test).

The reasonable adjustment duty does not apply here. The idea is that it is highly desirable for qualifications bodies to be 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.

Accordingly, on the question whether a particular standard can be applied, probably the most important issue will be whether the body can show that the standard meets the 'objective justification' test of being a proportionate means of achieving a legitimate aim. That link gives more detail on the test.

For 'What is a competence standard?' see s.54(6) EqA and para 8.27ff of the 2007 Code.

Legislation: s.53 EqA.

"An oral examination for a person training to be a Russian interpreter cannot be done in an alternative way, e.g. as a written examination, because the examination is to ascertain whether someone can speak Russian."
Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies. Para. 8.31

Process for assessing a competence standard

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 2007 Code). The other general rules also apply - such as those on 'discrimination arising from disability' and harrassment (see General rules below).

Legislation: s.53 EqA.

The nature of the competence standard - assuming that the standard meets the 'objective justification' 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 2007 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 'objective justification' test, and so be a proportionate means of achieving a legitimate aim. Also, or indeed as part of the question whether it 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. See this Ohio firefighter case, where the person's speech was fine in an emergency situation at a fire but not in interview. Also see the Employment Tribunal decision in Wakefield v Land Registry which found that where the stammer was a particular problem in job interviews, an interview was not a valid way to test how the individual would perform in the workplace.

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.

General rules

An assessor from a motor mechanics qualifications body is judging a number of practical tasks performed in the workplace by a trainee motor mechanic who has a speech impairment. The assessor imitates the mechanic's manner of speech and makes offensive remarks about him to the trainee's line manager. This is harassment, whether or not the disabled man was present when the comments were made, because they were made with the intention of humiliating him."
Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies. Para. 4.37
Apart from the issue of whether a particular competence standard can be applied, the rules are basically the same as those applying to employers. So broadly, as regards the matters set out in s.53 EqA, the rules cover:

Disputes

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 (EqA s.120(7)), such as in the case of the General Medical Council.

Top

Homepage | Equality Act in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

© Allan Tyrer 1999-2010
Last updated 21st November, 2010