This tragic case involved a physics student with depression and social anxiety disorder. The university continued to seek to use oral interviews to assess her, even though she failed to attend most of them. This continued after the university knew she had a mental health problem connected to the interviews. She committed suicide in her flat on the day when the university wanted her to be part of a group giving an oral conference presentation. The County Court held the university liable under the Equality Act. The decision is being appealed. My comments are below.
2022, County Court. Full judgment www.judiciary.uk/wp-content/uploads/2022/05/Abrahart-v-Uni-Bristol-judgment-200522.pdf (linked from web page).
Facts
Natasha was a physics undergraduate at Bristol University, studying for an MSci. In her second year (2017/18) she was required to give interviews after conducting laboratory experiments. The interviews formed part of her assessment and were marked. She could not cope with the interviews and her mental health swiftly declined. Then in April 2018, as part of her course, she would ordinarily have been expected to participate actively in a conference by way of presenting with fellow students, Instead, aged only 20, she took her own life [§ 3-4]. Natasha’s father brought this claim on behalf of her estate, partly under the Equality Act 2010 [§ 6].
The family argued that the university bore moral and legal responsibility for Natasha’s psychological decline and suffering leading to her death, because it continued to require her to deliver oral post laboratory interviews for assessment purposes and to participate in the conference, notwithstanding the knowledge it acquired of her mental health problems and the harm caused to her by the oral assessments [§ 5].
Course literature and disability support
The court set out the university’s programme specifications for the course so far as relevant [§ 16-24]. The main element of the mandatory unit “Practical Physics 203″ comprised five separate experiments in the laboratory (45% of marks), laboratory report (20%) computing (25%) and conference (10%). The handbook set out eight objectives one of which was “explanation of your work to others” [§ 21]. This involved an interview after each experiment lasting up to 25 minutes [§ 22].
Students undertaking this unit were also required to participate in the “Second Year Laboratory Conference”. The university would organise students into groups of four or five and each group was required to give a PowerPoint presentation for 12 minutes followed by 3 minutes of questions. It was mandatory for all members to participate [§ 23].
The court commented it had found nothing within the course literature to say that the interviews and or the presentation could only be carried out orally. There was nothing to suggest, for example, that an interview could not be conducted by text or a presentation conducted remotely [§ 25]. The court accepted that it was a core competence for a Practical Physics 203 student to speak critically of their own work and this required communication, but not necessarily in an oral way [§ 103].
The court said it might take time for a Disability Support Summary to be drawn up by the university’s Disability Services. The university’s own Quick Guide to Disability Support Summary – rightly, said the court – pointed out that the duty to support the student arises at the point of disclosure. The Quick Guide gave as an example of interim support: “Offering alternatives to group or presentation work where this is possible” [§ 28]. Disability Services recommended adjustments “written in broad strokes”, but it appeared that the final say on adjustments lay with the School (of Physics) [§ 28-30].
Starting university (2016)
When Natasha enrolled at the university, she did not disclose any relevant disability or characteristic, and at that time no member of staff would have considered her to have a patent disability [§ 41]. Her first year of the university course, from October 2016, seems to have progressed well academically [§ 42]. However:
45. Natasha’s friends and boyfriend were aware that Natasha suffered social anxiety in that she found interaction with persons she did not know (such as retail staff) to be extremely difficult and she would avoid such interactions. For example, [her friend U] and [her then boyfriend G] both speak of Natasha being unable to order food for herself by telephone from a takeaway and in a restaurant respectively.
Also Natasha was reported to be “very quiet” in her first year [§ 52].
Second year (2017/18)
In her second academic year a “significant emotional stressor” was that her then flatmate – who was also her laboratory partner – took an (unreciprocated) romantic interest in her. This caused tension with her boyfriend. [§ 46-49].
Also in that year, from October, her assessed interviews following laboratory experiments started. She attended the first interview but did not respond at all to the questions, so was marked down [§ 50]. She also did poorly at a re-arranged interview [§ 54]. She was also missing certain classes [§ 52]. She did not attend the second to fourth interviews at all [§ 55, 59, 72]. University staff sought to discuss concerns with her after the first interview and beyond [§ 51ff], although the court did not consider they had done enough [§ 89-91, 95-96, 100]. The court said two staff knew at an early stage that Natasha was suffering some injury to her mental health connected to the interviews [§ 54, 56, 88, 90].
The university was willing to consider modifications, but felt it difficult to do so without recommendations from the university’s Disability Service [§ 62, 98, 101]. It sounds like Natasha’s disability made her unwilling to talk to the Disability Service or to others [§ 62, 63, 91]. The Disability Service was not prepared for the scenario of a student communicating with it via a third party – which might be the only way a disabled student like Natasha could communicate. The Disability Service’s manager told the court in evidence that in those circumstances the Service would “reluctantly” provide reasonable adjustments [§ 94].
In February 2018, after Natasha wrote a note detailing plans to end her life and tied a ligature to the shower rail, she did go to the Student Health Service, with a flatmate and staff member to support her – and then to a doctor at the local NHS mental health crisis team [§ 65-67]. After she then missed the fourth interview, the university had some discussion with her about possible alternative assessment [§ 71-74]. It sent her a form to fill in to facilitate alternative arrangements, suggesting that a doctor’s letter would be needed (which Natasha would have to arrange) [§ 75]. On the same day Natasha did not attend her laboratory session and was rescued from an apparent suicide attempt [§ 76].
After the Easter break Natasha’s cohort were emailed their groups for the forthcoming conference presentation, to be given on 30th April. They were given information emphasising the need to participate in the presentation, the obvious inference being that would involve public speaking [§ 79]. She attended a fifth laboratory interview but scored poorly, probably due to being unable to orally answer questions [§ 80]. Shortly before the conference, a staff member spoke to Natasha and told her she did not have to speak at the conference if she did not wish to, provided her contribution was clear. Natasha said she would participate in delivery of the presentation [§ 81]. However she did not attend the conference. Later the same day her flatmate found her after she had committed suicide [§ 82].
Medical evidence
It was common ground that from about October 2017 Natasha had a disability within the Equality Act, by way of a mental impairment defined as “severe depression with prominent anxiety features” [§ 106, 108-109]. After cross-examination of the university’s medical expert, it was also undisputed that the university’s oral assessment methods materially contributed to her illness [§ 110-113, also 99].
The court also accepted the claimant’s medical evidence that she had a separate social anxiety disorder (SAD), although nothing really turned on this issue [§ 107, 114]. The court considered that this SAD too was a disability from October 2017 [§ 115].
Held by the County Court: The disability discrimination claim under the Equality Act succeeded. The court awarded £50,000 in damages.
Knowledge of disability
The court said the claimant must prove that the university had actual or constructive notice of Natasha’s disability. [My comment: The court did not explain its legal basis for saying that]. However the university’s staff could see for themselves that she had a mental impairment which had a substantial and long-term adverse effect on her ability to carry out an otherwise normal task within her course from October 2017 [§ 116, see also 133].
Curriculum defence
S.94(2) EqA excludes from the relevant provisions of the Equality Act “anything done in connection with the content of the curriculum”. The university initially argued that it could rely on this defence. In closing submissions, however, it accepted it could not do so because the judgment of Warby J in Birmingham City Council v Afsar 2019 was binding on the County Court (for the Asfar case see Oral assessments at university: the rules>Curriculum defence>Cases). The university accepted that the ratio of paragraph 51 of that judgment prevented it from arguing in this case that its method of teaching could fall into the curriculum defence. However, the university’s barrister wished to record that he did not agree with Warby J’s decision, and would challenge the point if this found its way to a higher court [§ 117-119].
Reasonable adjustments
The claimant identified the following reasonable adjustments in her court claim or at the hearing:
- With respect to the laboratory interviews:
- removing the need for oral assessment altogether and/or;
- providing written questions in advance.
- With respect to the conference:
- removing the need for oral assessment;
- providing written questions in advance;
- assessing Natasha in the absence of her peers;
- using a smaller venue.
- Communication via a text or remote type service. [§ 121]
The court said that objectively, and on the available evidence, it assessed those adjustments as reasonable [§ 121]. It said it considered justification (below) a little later in the judgment [§ 121]. [My comment: “Justification” is not a defence to a reasonable adjustment claim. It is unclear how justification was relevant here.]
The court said it was not necessary for Natasha to identify reasonable adjustments at the time; if there was a duty to make reasonable adjustments in the first place then – citing Cosgrove v Caesar & Howie – it was for the university to apply its mind to the adjustments that could be made [§ 122, 133]. Insofar as the university argued that it made any adjustments (the court considered the university did not get that far) Natasha’s substantial disadvantage compared to a non-disabled person remained, so the duty to make reasonable adjustments could not be said to have been complied with [§ 123].
The claim was for reasonable adjustments to a provision, criterion or practice (PCP), the PCP being apparently [§ 125] the requirement to attend oral assessments. The university accepted that this PCP put her at a substantial disadvantage, and the court in any event accepted the pleaded case about the specifics of the disadvantage it caused her [§ 125-127].
[My comment: See below Comments: Technical points on what test for reasonable adjustments should be applied here.]
Reasonable adjustments: Competence standards
The university argued that the oral assessments were the application of a “competence standard”, and therefore not subject to the reasonable adjustment duty (Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards”) [§ 124,128]. The court said the first and fundamental difficulty the university faced here was the evidence that Natasha had a chance of scraping through Practical Physics 203 without undertaking the laboratory interviews at all [§ 129].
The court suspected that whether a PCP is the application of a competency standard will be obvious most of the time, and very case specific. For example, requiring completion of work within a time-limited period would amount to a competency standard in a course involving a job where time was critical, such as emergency medical treatment or bomb disposal [§ 130]. In the present case the court rejected the argument that it was a competence standard, saying:
131. It is obvious to me that the fundamental purpose of the oral assessments was to elicit from Natasha answers to questions put to her following the experiments and it is a statement of the obvious that such a process does not automatically require face to face oral interaction and there are other ways of achieving the same. This seems to have been accepted in any event by [the Unit Director for Practical Physics 203] in cross examination.
[My comment on what the court here says about competence standards is at Oral assessments at university: the rules>Competence standards in Abrahart case.]
Reasonable adjustments: Conclusion
There was no evidence that Natasha refused to engage with any reasonable adjustments, because whilst a few ideas were floated none were implemented. The greatest criticism that could be made of her was that she did not engage with Disability Services. However that non-engagement resulted from her disability. Unfortunately, in the absence of a Disability Support Summary the university seemed to simply stall in its consideration of reasonable adjustments. In those circumstances the university could not rely on lack of knowledge on its part to make reasonable adjustments – applying Tarbuck v Sainsbury’s Supermarkets, 2006 (Tarbuck is considered at Reasonable adjustment rules: employment>Assessment, consultation and trials) [§ 133].
The court said we will never know for certain whether the reasonable adjustments suggested would have worked. However they were reasonable and appeared to address Natasha’s difficulties. The court concluded that this reasonable adjustment claim was made out [§ 134-135].
Indirect discrimination (s.19 EqA)
The court probably also found the university liable for indirect discrimination, but does not say so expressly. The court rejected an argument by the university that Natasha’s comparator was someone who had similarly poor skills of oral presentation [§ 136].
Discrimination arising from disability (s.15 EqA)
Did the university treat Natasha unfavourably because of something arising in consequence of her disability (Oral assessments at university: the rules>Discriminiation arising from disability)? [§ 137]
The alleged unfavourable treatment was “with respect to the marking down of her oral assessment work/imposition of penalty marks (with which Natasha would be stuck unless somehow successful in pursuing a case of extenuating circumstances but would still result in a period of unfavourable treatment)”. The court said in its judgment there could be no doubt that this was discrimination, especially once the university knew or should have known that a mental health disability of some sort was preventing Natasha from performing. Causation was not in issue [§ 137-138].
[My comment: The court calls this “direct discrimination”, which would be under s.13 EqA. However the court is refering to s.15, and to the test in s.15, which is actually “discrimination arising from disability”.]
Justification
The court decided that the university had not justified the lack of adjustments. The university argued there must be a level playing field for students. It pointed to the University’s Regulations and Codes of Practice for Taught Programmes on assessments which said “If an oral examination is part of the assessment of a unit, it must apply to every student taking that unit. The court said this argument meant that sentence must itself be seen as another PCP [presumably subject to adjustment]. In any event the court pointed to other provisions in the document about making adjustments [§ 139-141].
[My comment: The reasonable adjustment duty does not have a “justification” defence. Discrimination arising from disability (s.15) has a “justification” defence if the university can show the unfavourable treatment was a “proportionate means of achieving a legitimate aim”. Indirect discrimination (s.19) has a similar defence, if the PCP (rather than the unfavourable treatment) was a proportionate means etc. The court may well be intending to cover the s.15 and s.19 defences here, but does not make clear what test it is applying.]
Negligence claim
This was an additional claim, not under the Equality Act but a claim in tort (thelawyerportal.com). This negligence claim failed because the court was not satisfied that the university had a duty of care to Natasha. If there had been a duty of care, the court considered the university would have been in breach of it. The main breach would have been continuing to require Natasha to give interviews and attend the conference and marking her down if she did not participate when it knew that Natasha was unable to participate for mental health reasons beyond her control [§ 142-159].
Compensation
The court awarded total damages of £50,000, both for her “psychiatric injury” (in respect of pain, suffering and loss of amenity) and for injury to feelings [§ 160-165]. It also awarded the balance of Natasha’s funeral expenses, so far as not recovered in a claim against the NHS [§ 6, 166-167].
Appeal
The County Court decision is being appealed to the High Court, both on the EqA claim and whether there is a duty of care in tort. The hearing is set for 11-13 December 2023:
- Landmark High Court hearing set to decide whether universities owe duty of care to students (dpglaw.co.uk), 20 November 2023
- High court to consider whether universities owe students legal duty of care (theguardian.com), 20 November 2023
- Equality watchdog to intervene in landmark legal case (equalityhumanrights.com), 3 November 2023.
- Parents of Natasha Abrahart call for change in law as Bristol University appeals again (bristolpost.co.uk), 6th October 2022.
[My comment: Even if some technical points in the County Court decision could be criticised – see below – I doubt an appeal would change the ultimate outcome under the EqA.]
On the campaign, see below Campaign.
My comments
Comments: Importance for raising awareness
This case will no doubt raise the profile of mental health issues in universities. Indeed people who stammer may have a mental health condition as well as the stammer.
The case will hopefully also raise awareness of the need to consider adjustments and alternatives to oral assessments generally, including for students who stammer.
The case may also discourage universities from insisting on formalities like getting a recommendation from Disability Services before any steps can be taken.
Comments: First court decision on university rules?
So far as I can think, this is the first court decision on a claim against a university under Part 6 of the Equality Act. Part 6 (education) contains the main equality rights of students against universities and FE colleges.
There are some previous cases on professional exam bodies and work placements, in both cases under Part 5 EqA (employment).
Comments: Curriculum defence
The university initially argued that its actions were exempt under EqA s.94(2), which gives a defence for “anything done in connection with the content of the curriculum”. The university said it intended to argue this point if the case goes to appeal: above Curriculum defence.
As I discuss at Oral assessments at university: the rules>Curriculum defence, this defence allows universities to teach (and doubtless assess) a full range of ideas and materials even though some students may find them offensive. However I think that to apply the defence to this kind of case, where an assessment causes difficulty due to a student’s disability, would drive a coach and horses through Equality Act protection. I would argue that a university cannot use the defence in this type of case.
Comments: Competence standards
The reasonable adjustment duty does not apply to alter a competence standard, but the court here held the oral assessments were not competence standards. For my comments on what the County Court says about this, see Oral assessments at university: the rules>Competence standards in Abrahart case.
More generally, the County Court’s decision on competence standards is consistent with the point I make on this web site – for example Oral assessments at university: the rules>Don’t think only of reasonable adjustments – that whether something is a competence standard only affects a claim against the university for reasonable adjustments, not a claim against it under s.15 (discrimination arising from disability) or s.19 (indirect discrimination).
Comments: Technical points
There are various places where the court’s decision seems odd from a technical point of view.
For example, in considering reasonable adjustments, the court appears to be applying the duty on employers (which focuses on the individual claimant), rather than the anticipatory duty on universities discussed at Oral assessments at university: the rules>Reasonable adjustments: Anticipatory duty. However the outcome would probably be the same either way, and the court mentions the anticipatory duty at para 133. Also both parties were presumably agreed that this was the correct approach – the court does not say the university argued otherwise.
In the summary of the court decision above, I mention some (but not all) of the other things which seem to me odd technically.
Comments: Knowledge of the disability
Technically the relevance (if any) of knowledge on the part of university staff is a rather uncertain legal area: Universities: Knowledge of disability. The County Court does discuss it. However since this is only a County Court decision and mostly does not give legal reasons for what it says on knowledge, I do not really see this decision as very useful on the area: Universities: Knowledge of disability>Abrahart case.
Campaign
Natasha’s parents and 25 other families launched a campaign for a ‘Statute for Student Safety’, to recognise that universities should owe a legal duty to exercise reasonable care and skill when teaching students and providing support services:
- Parents of Natasha Abrahart call for change in law as Bristol University appeals again (bristolpost.co.uk), 6th October 2022
- thelearnnetwork.org.uk.
Links
- Court finds discrimination by University of Bristol led to death of vulnerable student Natasha Abrahart (irwinmitchell.com), 20 May 2022, by the solicitors who acted for the family
- Court finds discrimination by University of Bristol caused tragic death of disabled student (doughtystreet.co.uk), 20 May 2022, by the Chambers of the barrister who represented the family
- Natasha Abrahart’s parents: Bristol Uni ‘destroyed her and haven’t even said they’re sorry’ (thetab.com), 27 May 2022
- What should higher education learn from the Natasha Abrahart case? (wonkhe.com), 20 May 2022
- Presentations are a poor substitute for genuine student engagement (timeshighereducation.com), 18 July 2022, free login – eg “Communication and presentation skills: wonderful. But don’t pretend they’re a necessary part of a physics curriculum. / And don’t assess students on them. To do so is patently unfair…”.
