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Employment: Qualifications bodies

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

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 has yet to be updated for a new 2007 Code of Practice which is now available on the EHRC website (pdf file). References on the page are currently to the older 2004 Code of Practice.

These rules came into effect on 1st October 2004. There is more on the rules in the 2004 Code of Practice: Trade Organisations and Qualifications Bodies (link to DRC website).

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 (new sections 14A and 14B)

In the Government's view, the provisions do not cover more general qualifications such as GCSEs and A-levels - see Baronness Hollis in the House of Lords (Hansard 10th June 2003, col 146). However examining boards generally are to be brought within the DDA from September 2007.

For more on what counts as a trade or professional qualification, see paras 8.5 - 8.8 of the Code of Practice: Trade Organisations and Qualifications Bodies (link to DRC website).

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.

Whether a particular competence standard can be applied

On the question whether a particular standard can be applied, there is a special 'justification' test. Note, however, that claims here may 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. Assuming that case does not affect the rules for qualifications bodies, the body must be able to show that:

There is discussion of this justification test in para 8.36ff of the Code of Practice: Trade Organisations and Qualifications Bodies (link to DRC website). 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 of Practice.

"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."
Code of Practice: Trade Organisations and 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 Code of Practice: Trade Organisations and Qualifications Bodies (link to DRC website). 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 mean that there are constraints on how it can be assessed. Eg 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 - though perhaps increased stammering due to examination stress should be borne in mind.

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.

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.."
Para. 4.38, Code of Practice: Trade Organisations and Qualifications Bodies
Otherwise, the rules largely follow the scheme of the discrimination rules applying to employers. So broadly, subject to exceptions as regards the application of a competence standard, 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, such as in the case of the General Medical Council.

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Last updated 12th July, 2008