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Abrahart v University of Bristol: oral assessments led to suicide

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Last updated 21st March 2024.

A university was held liable under the Equality Act. It had insisted on continuing with oral assessments of a physics student who had depression and social anxiety disorder. She committed suicide on the day when she was to be part of a group giving an assessed conference presentation. The High Court upheld a County Court decision awarding £50,000 compensation.

2024, High Court, full decision: www.bailii.org/ew/cases/EWHC/KB/2024/299.html. Appeal from 2022 County Court decision (gov.uk, pdf).

Paragraph numbers are given for the decision of the High Court (HC) and/or County Court (CC).

Table of page contents

Summary

Bristol University

Summary: Facts

Natasha was a physics undergraduate at Bristol University. The second year of her course (2017/18) included a module called Practical Physics 203, where she was required to do oral 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. She had depression and social anxiety.

Later in her second year, as part of the same module, she was expected to participate actively in a conference, presenting with fellow students, Instead, on the day she was to do that, she took her own life.

The university had been unwilling to make significant modifications to its assessments unless Natasha got a Disability Support Summary (DSS) from the university’s Disability Services, which the university encouraged her to do. However, Natasha’s mental disability made her unable to engage with the university’s processes and/or with strangers. The County Court said this had become increasingly apparent to the university. Staff were told she had self-harmed and attempted suicide.

Natasha’s father brought this claim on behalf of her estate, partly under the Equality Act 2010 (EqA).

Summary: High Court decision

The High Court upheld the County Court decision that the university was liable for disability discrimination under the EqA, including for failure to make reasonable adjustments. The compensation was £50,000.

Competence standards

The reasonable adjustment duty cannot alter a university’s competence standards. However, the High Court upheld the County Court decision that in Practical Physics 203 the core competence of a student speaking critically of their own work required communication but (as a staff member had testified) not necessarily in an oral way. The course’s documentation did not map oral “Intended Learning Outcomes” (ILOs) through to that module. Nor did the assessment criteria include oral skills. Universities may now be more careful what their documentation says about competent standards – though even competence standards are subject to the EqA, see next paragraph. Below Comments: Competence standards (and more fully Competence standards not subject to reasonable adjustments).

The High Court was clear that competence standards not within the reasonable adjustment duty can still be subject to other EqA provisions, and also that methods of assessing competence standards can be subject to the reasonable adjustment duty. Below Comments: Competence standards (and more fully Competence standards not subject to reasonable adjustments).

Knowledge by university, and formalities (in reasonable adjustment duty)

The university argued that it did not have sufficient knowledge – including expertise and medical evidence – to do more by way of adjustments.

The High Court said that although the university (unlike an employer) had no statutory ‘lack of knowledge’ defence, what it knew or ought to have known about a student was relevant to whether it was reasonable for it to take a given step. This seems sensible, though doubtless the issue will reach the Court of Appeal and perhaps Supreme Court at some stage. Below Comments: Knowledge of the disability, and formalities (and more fully Relevance of knowledge: High Court).

The High Court held that the County Court was entitled to find it was reasonable for the university to have to make adjustments here. This was despite the fact that Natasha had not reported her disability to the university, had not requested adjustments, and had not been willing to discuss with the university her needs and what adjustments would help. Further, the university had no diagnosis of her condition, and there was no recommendation from the university’s Disability Services. The High Court said (Relevance of knowledge: High Court) that the fact she had not requested adjustments – and presumably the other factors above – could be relevant to what steps the university should reasonably have taken, but the reasonable adjustment claim here was upheld.

Therefore the case should discourage universities from always insisting on formalities, like getting a recommendation from Disability Services or medical evidence. The High Court added, however, there will no doubt be many cases where it is reasonable to verify what the disabled person says, and/or to require expert evidence or recommendations. It will depend on the circumstances. Below “Lesson” on the EqA. and Comments: Formalities, evidence.

Typing answers “live” upheld as reasonable adjustment

The most extreme adjustment advocated by the claimant in the County Court was abandoning the requirement for oral assessments and assessing Natasha by written work, including by answers typed “live” but remotely (which Natasha was using to interact with other students). The High Court accepted that the burden of proof had shifted to the university, and that the County Court was entitled to find that the university had not shown this adjustment to be unreasonable. Comments: What reasonable adjustments were accepted.

Knowledge under s.15 EqA

The High Court also upheld the County Court decision that the university was in breach of ss.15 and 19 EqA. As to s.15, the university had a specific defence under s.15(2) if it showed that it did not have actual or constructive knowledge of her disability, including that it was “long-term”. However the High Court accepted that the university had constructive knowledge of it being long-term at least from 13 February, at which stage the university could reasonably have been expected to ask Natasha if it could discuss the matter with, or get a report from, the Students’ Health Service. Below Knowledge of disability and s.15.

Negligence claim (duty of care)

The County Court rejected a negligence claim against the university (this was in tort rather than under the EqA), because it was not satisfied that the university had a duty of care to Natasha. The High Court decided it was not necessary for it to consider whether there was a duty of care, as it would not give additional compensation. Parents are campaigning for a statutory duty of care. Below Negligence claim (not decided) and Campaign.

Summary: My comments

My comments in full are below, and also external Links. I link to some of my comments above. Some of the others include:

Importance for raising awareness

This case has no doubt raised the profile of mental health issues in universities. The case will hopefully also raise awareness of the need to consider adjustments and alternatives to oral assessments generally, including for students who stammer. Below: Comments: Importance for raising awareness.

A welcome attempt to clarify an uncertain area of law

EqA duties of universities have barely been considered by the courts: below Comments: First decided EqA claim by student against university? The High Court decision is in many respects a thoughtful and rich consideration of this area of law. It is, though, subject to future decisions of the Court of Appeal and above, which we will doubtless get at some stage.

I welcome the implication of the High Court decision that the reasonable adjustment duty on universities includes a duty to react to a particular student’s needs, rather than only taking an “anticipatory” approach. However, one particular gap in the decision, to my mind, is that it does not consider how the case law on the anticipatory/group nature of the reasonable adjustment duty on universities works with the individual/reactive approach taken by the court here. Below Comments: “Reactive” or “ad hoc” adjustments.

An interesting point raised by the High Court decision, but not relevant in this case (on the findings of the County Court), is whether s.15 EqA can require exceptions to a competence standard based on the circumstances of the particular case: separate page Oral assessments at university: the rules>Can s.15 justification test require exceptions to a competence standard?

Curriculum defence

This case does not discuss whether a university might rely on the “curriculum defence” in this situation: below Comments: Curriculum defence.

Appeal?

The High Court decision may yet be appealed to the Court of Appeal.

Facts

Natasha was a physics undergraduate at Bristol University, studying for an MSci. In her second year (2017/18) she was required to give assessed oral interviews after conducting laboratory experiments. She could not cope with these 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, presenting with fellow students, Instead, aged 20, she took her own life [CC §3-4]. Natasha’s father brought this claim on behalf of her estate, partly under the Equality Act 2010 (EqA) [CC §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 [CC §5].

“Practical Physics 203” and course literature

The County Court set out, so far as relevant, the university’s programme specifications for the course [CC §16-24]. The mandatory module or unit “Practical Physics 203” accounted for 25% of the marks for the second year of Natasha’s course. It was common ground that she had to pass this module if she was to remain on the physics course. The pass mark was 40%. [HC §23-24]

This module required five laboratory experiments to be carried out. Marking for the module was apportioned as follows: laboratory experiments (45%), laboratory formal report (20%), computing (25%) and laboratory conference (10%). The 45% was assessed partly on the basis of the student’s laboratory notebook, and partly through a post-laboratory formal interview after each experiment. Each interview could last up to 25 minutes. Being late or absent for a laboratory interview without good reason would be classed as a late submission, and result in penalty marks being imposed. [HC §23-24, CC §21-22]

Students on the module also had to participate in the “Second Year Laboratory Conference”. This involved a 12-minute PowerPoint (or equivalent) presentation by groups of four or five students, based on an experiment which they had written up as a formal report. There were then three minutes of follow-up questions from amongst a group of around 43 other students who attended the conference. It was watched by two academic markers. Laboratory conferences were held in a 329-seat lecture theatre. [HC §25, CC §23]

The County Court commented that it had found nothing in the course literature to say that the interviews and/or 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 [CC §25]. The County Court accepted that it was a core competence for a Practical Physics 203 student to speak critically of their own work, and that this required communication, but not necessarily in an oral way [CC §103].

Disability support

A Disability Support Summary (DSS) by the university’s Disability Services would set out support requirements for a disabled student. It would be based on a Disability Adviser’s professional judgement, and review of relevant supporting evidence from other professionals, such as doctors or psychologists. When completed, the DSS would be circulated to the Disability Coordinator at the university’s relevant School (eg the School of Physics) who, with the student’s consent, was expected to circulate it to all relevant staff in the School involved in the teaching or support of the student. [HC §43]

However, the County Court noted that a DSS may take time to be completed. It said that the University’s Quick Guide to Disability Support Summary, in its view correctly, provided that the duty to support the student arose at the point when an issue was disclosed. That Summary also gave, as an example of interim support: “Offering alternatives to group or presentation work where this is possible”. In the evidence, there were also examples of adjustments being made for students on the same or a similar course to Natasha, where alternatives to group work and presentations had been recommended in DSS’s prepared by the university’s Disability Services. [HC §44, CC §27-28]

Disability Services recommended adjustments “written in broad strokes”. It appeared that the final say on adjustments lay with the School (of Physics). [CC §29-30, HC §95]

Starting university (2016)

When Natasha began at the university in around October 2016, the university had no reason to suspect that she would be any different to any other undergraduate aged nearly 19. No relevant disability or characteristic was disclosed to it. No member of its staff would have considered her to have a disability, or would have known that she would have difficulties with oral assessments in the future. [HC §19, CC §41]

Her friends and flatmates were aware that she suffered social anxiety [HC §20, CC §45]. Also Natasha was reported to be “very quiet” in her first year [CC §52, HC §34].

Second year (2017/18)

In her second academic year a “significant emotional stressor” was that one of her flatmates W (who was also her laboratory partner) took an unreciprocated romantic interest in her. This caused tension with her boyfriend, who was at a different university. W suspended his studies and moved out of the flat in December 2017, after a fight with Natasha’s other flatmate RP. [HC §21-22, CC §46-49].

Also in this academic year, from October 2017, her “Practical Physics 203” module started. She attended the first assessed laboratory interview (along with W), but did not respond to any of the questions, so she was marked down [HC §26, CC §50]. Natasha was encouraged to – but did not – speak to CB, who was a Senior Lecturer and the Unit Director for Practical Physics 203. There were also discussions among staff [HC §27-34]. Natasha did have contact with BP, the Student Administration Manager for the School of Physics [HC §36-39]. Natasha did poorly at a re-arranged first interview [HC §37, CC §54]. She was also missing certain classes [CC §52].

She did not attend the second to fourth interviews at all [HC §40, 49, CC §55, 59, 72]. University staff discussed or sought to discuss concerns with her after the first interview and beyond. When in December she saw AB, Senior Tutor at the School of Physics, he found it difficult to get any clear explanation of her behaviour. He asked her to see her GP and/or Student Counselling Services to see whether they could diagnose a particular issue, and then to “see if we can get a Disability Support Summary (if necessary)”. [HC §42], CC §56]

In the second term, AB and CB met Natasha on 13th February 2019. With her agreement AB contacted Disability Services on her behalf. However Natasha failed to respond to an email from Disability Services, who did not contact her again. [HC §48-56]

In mid-February, Natasha’s flatmate RP (with her consent) told BP – the Student Administration Manager for the School of Physics – that Natasha had been self-harming. He said Natasha had been very depressed recently, and was too awkward/shy to do something herself about it [HC §58]. On 20th February, an email from Natasha’s account to BP, written by her flatmate RP, said that Natasha had been having suicidal thoughts and “to a certain extent attempted it” [HC §62]. This led to an appointment with a GP at the Students’ Health Service, where RP did most of the talking, and a referral to the Crisis Team at Bristol Mental Health. The GP or NHS did not themselves share health information with the School of Physics. [HC §63-65, CC §65-67]

After Natasha then missed her fourth interview on 27th February, BP had some discussion with her about possible alternative assessment, such as a scripted discussion, and followed this up with an email saying “Don’t worry about asking for whatever you need” [HC §721, CC §71-74]. On 20th March, BP emailed her an “extenuating circumstances” form to fill in, suggesting that a doctor’s letter would be needed, which Natasha would have to arrange [HC §78, CC §75]. On the same day Natasha did not attend her laboratory session, and (unknown to the university) was rescued from an apparent suicide attempt [HC §78-79, CC §76].

The university sent out preliminary information, and then groups, for the forthcoming conference presentation to be given on 30th April, after the Easter break. The information jt sent out emphasised the need to participate in the presentation, the obvious inference being that this would involve public speaking. [HC §81, 83, CC §79]

On 26th April, Natasha attended a fifth laboratory interview but scored poorly, the same as in October when she did not speak at all in the interview. [HC §84, CC §80].

Shortly before the conference, BP told Natasha that 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. [HC §85, CC §81]

However, Natasha did not attend the conference on 30th April 2019. Later the same day she was found to have committed suicide. [HC §92, CC §82]

Generally, the university was willing to consider modifications, but was not prepared to take significant action without recommendations from the university’s Disability Service [HC §54, 213-214, CC §62, 98, 101]. However, Natasha was unable, for reasons related to her mental health, to engage with the university’s processes and/or with strangers. This became increasingly apparent as the university tried to encourage her to take various steps, and in effect Natasha told AB and CB this on 13 February 2018 [HC 212(iii), CC §62, 63, 91]. The County Court was critical of “the strategy of referring a student known to be unable to talk to strangers to strangers” [HC 212(iii), CC §91].

Medical evidence

It was common ground before the County Court that from about October 2017, Natasha had a disability within the EqA, by way of a mental impairment defined as “severe depression with prominent anxiety features” [CC §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 [CC §110-113, also 99].

The County Court also accepted the claimant’s medical evidence that Natasha had a separate social anxiety disorder (SAD), although nothing really turned on this issue [CC §107, 114]. The County Court considered that the SAD too was a disability from October 2017 [CC §115]. This was not at issue before the High Court.

Held by the High Court: the County Court was entitled to reach the decision it did, namely that all the disability discrimination claims under the EqA succeeded, and £50,000 was awarded in damages. The EqA claims were for reasonable adjustments (s.20), discrimination arising from disability (s.15) and indirect discrimination (s.19).

Knowledge of disability: reasonable adjustments

Knowledge: County Court

The County Court said that to claim reasonable adjustments, the claimant must prove that the university had actual or constructive notice of Natasha’s disability. 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 [CC §116, see also §133].

Relevance of knowledge: High Court

The High Court pointed out that a university’s reasonable adjustment duty towards students may be owed to people who were not known to it before the issue arose in relation to them. The duty has therefore been described as “anticipatory”. [HC §157-161] (University and FE: the rules>Reasonable adjustments).

For the reasonable adjustment duty to arise, there was no specific requirement that the university knew or ought to have known of the claimant’s disability or its effects. This absence of a specific statutory defence for a university was reinforced by the fact that DDA 1995 s.28S(3) previously gave such a defence, and by the ongoing specific statutory defence given to employers in the EqA. However, in the High Court’s view, what the university “knew or ought to have known about the student or prospective student will be relevant to the question whether it was reasonable to take a given step or steps”. [HC §162]

In this case Natasha had not engaged with the university’s procedures. However, there was no requirement for the claimant to have identified, at the time, the adjustments which ought to have been made: Cosgrove v Caesar & Howie (Reasonable adjustment rules: employment>Claimant need not have suggested adjustments at the time). The fact that a claimant did not, or was unable to, suggest steps which are subsequently argued for at the hearing may, though, be relevant to the question whether they were reasonable steps for the defendant to take. [HC §163]

By the time of the hearing of the claim, however, the claimant must have set out their case as to the adjustments which they say ought to have been made. There must also be at least some evidence of an apparently reasonable adjustment from which the court could conclude that the duty was breached. If so, the burden shifts to the defendant to prove that the duty was not breached, ie that any reasonable steps were taken and/or that the steps proposed by the claimant were not reasonable ones for it to take (Reasonable adjustments by service providers: rules>Burden of proof). [HC §164]

So, in the High Court’s view, the existence of the university’s reasonable adjustment duty does not depend on the university’s actual or constructive knowledge of the claimant’s disability and its effects. However, whether the duty has been complied with depends on the reasonableness question, ie whether there were steps which it would have been reasonable for the university to have taken to avoid the disadvantage. In deciding this reasonableness question, the court is entitled to take into account all the relevant circumstances of the case, including what was known or anticipated, or ought to have been known or anticipated, by the defendant. In contrast with s.15(2) EqA (below Knowledge of disability and s.15), the knowledge question in this context is a broad, factual question, rather than a technical one. “The overall legislative approach therefore gives the court the flexibility to reach sensible conclusions about what steps ought reasonably to have been taken to address the disadvantage experienced by the disabled person, taking account of the interests and issues on both sides of the particular dispute.” [HC §165-166, 160]

The relevance of knowledge is consistent with the reasonableness test being objective rather than subjective, said the High Court. “The objective question for the court, where a point is taken on knowledge, would be: given what the defendant knew or ought to have known, was the proposed step one which it was reasonable for it to take?” However, it is not relevant whether the defendant thought it was a reasonable step, as the question is an objective one for the court. [HC §167]

Applying this to the present case, the High Court found the County Court was entitled to decide that the university had not shown the adjustments proposed would be unreasonable, As to knowledge, see particularly below:

[Below Comments: Knowledge of the disability, and formalities (reasonable adjustments), Comments: Burden of proof for reasonableness of adjustments]

Competence standards not subject to reasonable adjustments

A specific exception in EqA Sch 13 para 4(2) says that the reasonable adjustment duty on universities does not apply in respect of a provision, criterion or practice (PCP) which is the application of a “competence standard”: Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards”. The university argued that the oral assessments here were the application of a competence standard, and were therefore not subject to the reasonable adjustment duty [CC §124, 128].

Competence standards: County Court

The County 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 [CC §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 [CC §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.

Competence standards: High Court

The High Court made the point that the competence standards exception in the EqA is for the purposes of the duty to make reasonable adjustments only, so a competence standard can still be challenged under other EqA provisions:

173. … There can be no requirement to make adjustments or exceptions to a competence standard based on the circumstances of a particular case, but this does not mean that the question whether such a standard should be applied by a given educational institution in assessing levels of competence or ability is beyond the reach of the law. If a competence standard operates in a way which is indirectly discriminatory, an education institution will be required to show that it is a proportionate means of achieving a legitimate aim: see section 19 of the 2010 Act. ..

The High Court also made the point that although a standard applied to measure whether a person has a particular level of competence or ability cannot be required to be adjusted in an individual case, methods of assessment of competence standards are in principle subject to the duty to make reasonable adjustments which might facilitate the person’s ability to demonstrate that they have met the standard. [HC §174]

The High Court agreed with the claimant’s lawyer that EqA Sch 13 para 4(2)(3) should be read on the basis that it enacts an exception [ie so it should be read narrowly?], and taking into account that the fact the exception doesn’t apply does not mean a given adjustment necessarily has to be made. Whether a particular adjustment is required will depend on whether the substantial disadvantage test is satisfied and, if so, whether it is reasonable for the adjustment to be made in all the circumstances. The EqA therefore permits sensible conclusions on the facts of each case, notwithstanding a narrow reading of the exception. [HC §175]

The High Court cited para 7.34 of the 2014 Technical Guidance which says that a “requirement or condition only amounts to a competence standard if its purpose is to demonstrate a particular level of a relevant competence or ability…”. The examples given there illustrated that, in a given case, there may be an issue about whether a requirement or condition of a course is being applied to measure a level of competence at all. The question whether the requirement or condition was in fact being applied to measure whether a person has a particular level of competence is an evidential one for the court. In the present case, the issue was whether the relevant requirements of Practical Physics 203 were competence standards, or methods of assessing whether those standards have been met. [HC §176-178].

The High Court felt one should approach with caution a statement in the EHRC Technical Guidance that in relatively rare circumstances, the ability to take the test may itself amount to a competence standard. For example, said the court, a test of whether someone could change a car wheel would not simply assess whether they could do this at all, but would involve standards or criteria which measure whether the task is deemed to have been completed. The standards of competence could not be measured without the examinee actually changing the wheel. But it was important to keep in sharp focus the limits of the Sch 13 para 4(3) “exclusion zone”, so as to avoid results contrary to the inclusive purpose of the disability discrimination legislation. “The legislation allows for a common sense solution in the examples which I have given thus far, namely that it would not be a reasonable step for the requirement for the practical test to be dispensed with altogether. But, depending on what is being measured, it may be reasonable for the format of the practical test to be adjusted.” A French oral test was another example considered by the court. [HC §180-184] [See further

The High Court felt one should approach with caution a statement in the EHRC Technical Guidance that in relatively rare circumstances, the ability to take the test may itself amount to a competence standard. For example, said the court, a test of whether someone could change a car wheel would not simply assess whether they could do this at all, but would involve standards or criteria which measure whether the task is deemed to have been completed. The standards of competence could not be measured without the examinee actually changing the wheel. But it was important to keep in sharp focus the limits of the Sch 13 para 4(3) “exclusion zone”, so as to avoid results contrary to the inclusive purpose of the disability discrimination legislation. “The legislation allows for a common sense solution in the examples which I have given thus far, namely that it would not be a reasonable step for the requirement for the practical test to be dispensed with altogether. But, depending on what is being measured, it may be reasonable for the format of the practical test to be adjusted.” A French oral test was another example considered by the court. [HC §180-184] [See further

The High Court felt one should approach with caution a statement in the EHRC Technical Guidance that in relatively rare circumstances, the ability to take the test may itself amount to a competence standard. For example, said the court, a test of whether someone could change a car wheel would not simply assess whether they could do this at all, but would involve standards or criteria which measure whether the task is deemed to have been completed. The standards of competence could not be measured without the examinee actually changing the wheel. But it was important to keep in sharp focus the limits of the Sch 13 para 4(3) “exclusion zone”, so as to avoid results contrary to the inclusive purpose of the disability discrimination legislation. “The legislation allows for a common sense solution in the examples which I have given thus far, namely that it would not be a reasonable step for the requirement for the practical test to be dispensed with altogether. But, depending on what is being measured, it may be reasonable for the format of the practical test to be adjusted.” A French oral test was another example considered by the court. [HC §180-184] [See further Oral assessments at university: the rules>Abrahart case on process inextricably linked with competence standard.]

The High Court thought it important, where these types of issue arise in relation to a given assessment or examination, to identify on the evidence:

  • what competence or ability is being measured?
  • what are the standards which are being applied to determine whether a person has met the relevant level of competence?
  • what aspect of the process are methods of assessment of whether those standards have been met? [HC §186]

Competence standards in this case (High Court)

The PCP said to put Natasha at a substantial disadvantage in this case was the requirement to be assessed orally by way of the laboratory interviews and the laboratory conference presentation, including the format, structure and venue for the assessments. The question was whether these requirements, in whole or in part, amounted to the application of competence standards, or were methods of assessment. [HC §187]

The university argued that “the assessment of a student’s ability to explain laboratory work orally, to defend it and to answer questions on it was a competence standardbecause this “is a core competency of a professional scientist”. The university supported its argument with documents, including from the Institute of Physics, evidence from staff on the importance of communication, and a survey showing that oral assessments were common in physics degrees elsewhere. It argued that the claimant’s approach (below), which it characterised as involving “a fairly minute analysis of the various skill matching documentation, was inappropriate. It thought the matter should be looked at broadly and in a commonsense manner, asking “why were those oral assessments part of this course?”. [HC §188-189]

The claimant argued, among other things, that:

  • The laboratory interviews and conference were methods of assessment of the student’s knowledge and comprehension, their laboratory practice and their ability to explain and defend their work and answer questions on it. The process of explaining, defending, presenting etc laboratory experiments did not have to be oral. [HC §190]
  • In the documentation for the physics course as a whole, only one of the 31 Intended Learning Outcomes (“ILOs”) concerned oral (referred to as “verbal”) communication/presentation skills. This was P25: “Accurately and clearly present complex issues to others at an appropriate level in written and verbal presentations”. However, the documentation setting out which ILOs were being taught and assessed on Practical Physics 203 did not include P25. [HC §191]
  • The marking criteria for the “Experiment” component of this module did not test for presentation skills at all, still less oral presentation skills. They awarded marks for 13 criteria under the headings “Understanding, Experimental results, Notebook and organisation, and critical sense and creativity”. None of the 13 marks was awarded for the quality of the oral exposition per se, ie there was no particular mark for the quality of the student’s oral communication. [HC §192]

Also CB, the Unit Director of Practical Physics 203, had said in evidence, and the County Court accepted, that it was a core competence for a student in this module to speak critically of their own work and this required communication but not necessarily in an oral way [§192].

Against this background, said the High Court, it was apparent that the university’s appeal to the High Court on this point was no more than an attempt to argue a factual issue – on what was and was not being measured by Practical Physics 203 – which the university had lost in the County Court on the factual evidence [HC §193].

The County Court had found that the laboratory interviews and conference clearly formed important parts of the course for the purpose of the student displaying or evidencing knowledge, but had found nothing in the course literature to say that they 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. The County Court had also found that the evidence from CB (the Unit Director for the relevant module) supported the argument that communication need not necessarily be oral. [HC §196-197].

The High Court said the County Court judge’s conclusion was clearly open to him on the evidence, and right on his findings of fact. Among other things, the judge had concluded that the fundamental purpose of the oral assessments was to elicit answers to questions put to the student, and that such a process did not automatically require face-to-face oral interaction; there were other ways of achieving this. [HC §198-200, 202].

(The County Court had also said that a fundamental difficulty the university faced was the evidence that Natasha had a chance of scraping through Practical Physics 203 without undertaking the laboratory interviews at all. The High Court did accept that the fact she could have passed the module without undertaking laboratory interviews at all did not, of itself, mean that the oral assessments were not the application of a competence standard. However, this fact did tend to undermine the university’s argument that a core competency of a professional scientist is the ability to present results orally. [HC §202])

[Below My comments: Competence standards]

Reasonable adjustments generally

(I discuss the reasonable adjustment duty on universities at Oral assessments at university: the rules>Reasonable adjustment duty (s.20). It can apply if a provision, criterion or practice (PCP) applied by the university (other than the application of a competence standard) puts people with a particular kind of disability at a substantial – ie more than minor or trivial – disadvantage.)

On reasonable adjustments, see also above Knowledge of disability: reasonable adjustments and Competence standards not subject to reasonable adjustments.

Reasonable adjustments: County Court decision

The County Court upheld the claim for reasonable adjustments. It considered the following adjustments to be reasonable:

  • 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. [CC §121]

The claim was for failure to make reasonable adjustments to a provision, criterion or practice (PCP), the PCP being the requirement to attend oral assessments [CC §125, HC §187]. The university accepted that this PCP put Natasha at a substantial disadvantage, and the County Court in any event accepted the pleaded case about the specifics of the disadvantage it caused her [CC §125-127].

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 [CC §133].

There is more on the County Court decision in the account of the High Court decision below.

Reasonable adjustments: High Court summary of arguments to County Court

The High Court summarised the arguments made to the County Court. Subject to the competence standard point (above Competence standards not subject to reasonable adjustments), it was ultimately common ground before the County Court that there was the PCP alleged by the claimant, and that it put Natasha at a substantial disadvantage in comparison with persons who are not disabled. The duty to make reasonable adjustments therefore arose. [HC §205]

Importantly, the university did not submit that the adjustments proposed by the claimant, including dispensing with the interview and the presentation, were out of the question or inherently unreasonable. Indeed, part of its case was that a number of the claimant’s proposed adjustments had been mooted. Its central argument was that, although the proposed adjustments could in principle have been made, due process required to be observed and there had to be sufficient evidence available to the university to justify making them [HC §206]. The High Court continued:

207. The University argued, and argues, that it was therefore reasonable to require proper expert advice in the form of a DSS and/or medical evidence before taking steps that had the effect of reducing the rigour of the academic assessment. It was necessary to identify the source of [Natasha’s] difficulties and to receive recommendations as to the changes which should be made. This was said to be a matter of fairness to other students and necessary in order to maintain the academic integrity of the course. This was not a case in which the needs of the student might be more obvious – e.g. because they were dyslexic or a wheel chair user – and the relevant staff did not have medical or psychiatric expertise. There was always the risk of doing the wrong thing and making matters worse. In circumstances where, despite being repeatedly encouraged to do so, [Natasha] was not engaging with the University’s processes for obtaining such advice/evidence it was not reasonable for the University to do more than it had done.

The university had taken the County Court through the university’s Regulations and policy documentation with a view to demonstrating the procedures to be followed, and had argued that these were reasonable and so in accordance with s.20 EqA (the reasonable adjustment duty) [HC §208]. The university had also made further submissions on the adjustments, summarised by the High Court at §209 of its decision.

Reasonable adjustments: High Court analysis of County Court judgment

The university’s principal complaint to the High Court was that the County Court had not adopted a reasoned approach. However, the High Court said even this argument was, to a considerable extent, an attempt to reargue the case which the County Court judge had rejected on the facts. [HC §210]

Knowledge

The High Court said it was implicit in the university’s case that it did not have sufficient knowledge, in the sense of expertise or expert evidence, to be required to do more. It was therefore for the County Court judge to assess whether, taking into account the university’s level of knowledge, and the lack of medical evidence, its failure to make the proposed adjustments was reasonable. [HC §212]

The County Court had traced how the university’s level of knowledge of Natasha’s mental health and its effects developed over the months. It was aware that the university did not have a definitive diagnosis, and that the cause of her mental health issues was not fully known. But there was never a suggestion by the university that she did not genuinely have issues with her mental health, or was anything other than genuinely unable to cope with the oral assessments. Moreover, the duty to make reasonable adjustments, said the High Court, is concerned with the effect of the PCP on the disabled person, of which (the County Court found) the university was aware. A precise diagnosis would no doubt have been of interest, as would an explanation of what had caused the mental health issues. But these considerations were not of decisive importance for the reasonable adjustment duty once it was apparent that there was a genuine issue with Natasha’s mental health which was affecting her ability to meet the requirements of the module. [HC §212(i)(ii)]

The university was also aware that Natasha was unable, for reasons related to her mental health, to engage with the university’s processes and/or with strangers. The County Court was critical of “the strategy of referring a student known to be unable to talk to strangers to strangers”. That was a view of the evidence which the County Court judge was entitled to take. [HC §212(iii)]

[Below Comments: Knowledge of the disability, and formalities (reasonable adjustments)]

Insisting on process

A second theme in the County Court’s findings was that the university took the view that although adjustments could have been made, it would not do so without due process and medical evidence. It was not prepared to take significant action until it received a Disability Support Summary from its own Disability Services. [HC §213-214]

Continuing to mark her down

A third theme in the County Court judgment was that the judge found that the university’s strategy was to continue to mark Natasha down and penalise her, and he was critical of this. [HC §215]

It was in this context that the County Court judge said he could not see how the extenuating circumstances process would have been appropriate for her. Natasha would suffer the adverse marks and penalties, on the basis that they might be modified in due course provided she engaged with the university’s procedures, and could make the case they should be modified. The judge’s view of the reasonableness of this aspect of the university’s approach was clearly open to him. By the time of her death Natasha “had a set of marks which meant that she was very much at risk of failing the Module. She was therefore very much under pressure to attend the interviews and the presentation. Particularly given that her principal issue was anxiety, the possibility that her marks may be modified at some point in the future can have been of little real comfort to her.” [HC §216]

[Below Comments: Marking down was unfavourable treatment under s.15, despite possibility of extenuating circumstances]

Should have been earlier conversation

A fourth theme in the County Court judgment was that the judge noted that AB (Senior Tutor for the School of Physics) accepted that “there should have been a much earlier conversation with Natasha about reasonable adjustments…”. Overall, the judge clearly took the view that, bearing in mind that the duty to make reasonable adjustments is anticipatory, and having regard to what was known about Natasha, the university was not sufficiently proactive. [HC §217]

What County Court saw as central issue

Although the structure and/or terminology used by the County Court were not strictly correct, the High Court said it was clear that the County Court saw the question whether adjustments ought to have been made as the key issue in relation to all three disability discrimination claims. Although the County Court [CC §139-141] had wrongly talked of whether the lack of adjustments was “justified” (justification is not a defence to a reasonable adjustments claim), it was clear the County Court had well in mind the university’s arguments on the university’s Regulations, due process, and fairness to the students, in relation to the issue of adjustments [HC §218-219]

In any event, the university’s due process arguments were not cogent reasons for its failure to make adjustments. It would not necessarily be reasonable for the university to insist that its processes be followed if any adjustments were to be made. The university’s own rules and requirements were “another PCP”, so there was the question whether its procedures ought reasonably to have been adjusted in the circumstances of this case. Furthermore, the university’s Regulations and Code of Practice on which it relied themselves recognised that a student was not obliged to contact or use Disability Services, and that the university’s Schools (eg the School of Physics) still had a responsibility to make anticipatory and reasonable adjustments. The document itself stated that the duty to make reasonable adjustments may require relaxing or setting aside the provisions Regulations and Code of Practice. [HC §220-221]

County Court’s conclusions on reasonable adjustments

The High Court went through the County Court’s conclusions [HC §222]. Among other things:

  • The County Court had found that the adjustments contended for by the claimant were not unreasonable on their face, and the burden of proof had therefore shifted (above) to the university to show that they were not reasonable ones for it to take.
  • Relying on Cosgrove (above), there was no obligation on Natasha, at the time, to specify the adjustments which she required [CC §122, 133]. This was a key point which addressed a central feature of the university’s case, ie that she had not engaged with its processes and there was therefore no Disability Support Summary with recommendations etc.
  • The County Court [CC §133] had referred to Tarbuck v Sainsbury’s Supermarkets (considered at Reasonable adjustment rules: employment>Assessment, consultation and trials), which said that consultation itself is not an adjustment, but if an employer does not consult with an employee about adjustments it cannot then rely on a lack of knowledge which would have resulted from consultation as a shield to defend a complaint of failure to make reasonable adjustments. This reflected the County Court’s view that the university should have spoken to Natasha about reasonable adjustments earlier and been more proactive.
  • The County Court had found the proposed adjustments were reasonable and, in effect, that there was a real prospect that they would have mitigated or avoided Natasha’s difficulties. These were findings of fact and/or evaluative judgments which were open to the court on the evidence.

Reasonable adjustments: High Court’s conclusion

The High Court acknowledged that the County Court could, for example, have dealt with each of the proposed adjustments (above) in turn, and considered the likelihood that it would be effective. However, the most extreme step advocated by the claimant was abandoning the requirement for oral assessments and assessing Natasha by written work (including by answers typed “live” but remotely, which Natasha was using to interact with other students). There was no dispute that this would have avoided the disadvantage which Natasha was experiencing. The only question was whether the university had satisfied the County Court that, for the reasons which it had put forward, this was not a reasonable step to take. Whilst it would have been open to another court to take a different view, the conclusion of the County Court that the university had not shown the adjustment to be unreasonable was clearly open to the judge. [HC §223]

The High Court was satisfied that the County Court’s conclusions were the result of a reasoned approach. The High Court did not agree that there was any identifiable flaw. Also a person (including the parties) with knowledge of the arguments and evidence in the case was able to understand from the County Court decision why the university lost this claim. [HC §224]

[Below Comments: What reasonable adjustments were accepted, Comments: Burden of proof for reasonableness of adjustments]

Discrimination arising from disability (s.15 EqA)

(S.15 can apply if a university treats a disabled person unfavourably “because of something arising in consequence of” their disability, unless the university shows the unfavourable treatment is justified. The university also has a defence if it shows it did not know and could not reasonably be expected to know of the disability. See Oral assessments at university: the rules>Discrimination arising from disability.)

Knowledge of disability and s.15

In summary, the High Court held that the university had sufficient knowledge of Natasha’s disability from the middle of February 2018, somewhat later than found by the County Court. (“Constructive knowledge” is what the university could reasonably be expected to know.)

In s.15(2) there is a defence for lack of knowledge. The High Court said it was for the university to prove it did not have actual or constructive knowledge of an impairment with the characteristics described in the statutory definition of “disability” (Gallop v Newport City Council, Knowledge of disability>Knowledge of facts of the disability, rather than law). This included actual or constructive knowledge that the effect on the claimant’s ability to carry out normal day-to-day activities was “long-term”, ie that it “could well” last for more than 12 months (Disability: Stammering starting in adulthood>’Long-term’). The High Court considered cases on how courts should assess “constructive” knowledge, ie what the university could reasonably be expected to know. [HC §227-231]

The university had argued to the County Court that it did not have actual or constructive knowledge that Natasha’s impairment was “long-term” as defined – given that there had been no issues in her first year, and the lack of medical evidence of a diagnosis and of the prognosis. The claimant’s lawyer argued that the university knew enough, and in any event had not done all it reasonably could to find out the position. There was no evidence that if Natasha had been asked for her consent to a medical examination or the disclosure of medical information about her, she would have withheld it. [HC §237-238]

The High Court decided that the County Court had not adequately explained why it concluded that from October 2017 the university had actual or constructive knowledge of the substantial effects of Natasha’s impairment being long-term. [HC §239-240]

However, giving the university the benefit of the doubt, the High Court accepted that the university had the requisite knowledge by 13th February 2018. AB, Senior Tutor for the School of Physics, then appreciated that – in addition to the other effects which had become apparent – Natasha’s condition was such that she felt unable to seek the help or support which he had advised her to seek. He considered that she genuinely had some form of social anxiety, and was looking at the issue as related to disability, hence his referring her case to Disability Services on her behalf. Moreover, by this point at the latest, said the High Court, the university could reasonably have been expected to ask Natasha if it could discuss the matter with the Students’ Health Service, or for her to consent to a report from this Service. The evidence strongly suggested that if she had been asked, she would have consented, and the likely duration of her condition would have been clear. [HC §241-248]

Objective justification under s.15

The High Court considered the test for assessing whether unfavourable treatment is objectively justified under s.15, ie a proportionate means of achieving a legitimate aim. The four questions were: 1. Is the objective sufficiently important to justify limiting a fundamental right? 2. Is the measure rationally connected to the objective? 3. Are the means chosen no more than is necessary to accomplish the objective? 4. Balancing one against the other, does the severity of the measure’s effects on the individual claimant outweigh the importance of the objective, to the extent that the measure will contribute to its achievement? (this fourth question having been added by the Supreme Court in Akerman-Livingstone v Aster, Objective justification defence>Four-stage structured approach). In the light of question 3, whether the unfavourable treatment was proportionate would necessarily take into account whether less unfavourable or detrimental treatment might reasonably have achieved the defendant’s aims. Accordingly, it would be a rare case in which unfavourable treatment would be proportionate where the need for it would have been avoided had the duty to make reasonable adjustments been complied with. [HC §233-236]

The High Court rejected the university’s argument that the County Court failed to consider justification. The County Court did not set out the objective justification test. However, this was in large part a reflection of the way the case was put on behalf of the university. If compliance with the duty to make reasonable adjustments would have meant that Natasha attended and/or performed better in the adjusted assessment, then it was virtually inevitable that her marks and penalty points (the unfavourable treatment) would not be proportionate, because the unfavourable treatment actually meted out would not have been necessary or appropriate. For all practical purposes, therefore, the issue under section 15(1)(b) (ie whether there was objective justification) turned on the issue of reasonable adjustments. On the basis that the County Court reached a permissible conclusion on the question of reasonable adjustments, the university’s appeal against the court’s decision on justification failed. [HC §249-252]

[Below Comments: Justification defence]

Indirect discrimination (s.19 EqA)

(Broadly indirect discrimination is where a university applies a provision, criterion or practice (PCP) to people generally, but the PCP puts people with a particular disability (including the claimant) at a particular disadvantage in comparison with people who do not have that disability. However, the university has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim (justification). See Oral assessments at university: the rules>Indirect discrimination (s.19).)

The County Court had found the university liable for indirect discrimination under s.19 EqA.

The County Court rejected an argument by the university that Natasha’s comparator was someone who had similarly poor skills of oral presentation [CC §136] This aspect was not appealed.

The appeal to the High Court related to the County Court’s decision that the university had not shown justification:

General points on justifying indirect discrimination

The High Court made the point that justification for indirect discrimination under s.19 typically raises questions of wider application than under s.15 and s.20 (s.20 is reasonable adjustments). Under s.19, what has to be justified is the generally applicable PCP itself – in this case whether the oral assessments were a proportionate means of achieving a legitimate aim – rather than the question whether, in the circumstances of a particular case, either adjustments to the PCP should be made or it should be disapplied. The court considers the impact of the PCP on the group of people who share a particular disability. Under s.19 the disadvantage to be weighed in the balance under question 4 is therefore the group disadvantage which results from the PCP. The proportionality question is also likely to be answered by reference to wider, “macro”, considerations than the effect of the unfavourable treatment in s.15, or of the PCP in s.20, on the particular disabled person who brings the claim. [HC §255] [See also my page Group test for objective justification of indirect discrimination?]

It follows, said the High Court, that claims under s.19, on the one hand, and claims under ss.15 and 20 on the other, do not necessarily stand or fall together. If a claimant wins under s.19, it is likely that they would win under ss.15 and 20 as well, assuming all were based in the same facts. But the converse is not the case. A claimant might lose under s.19 but nevertheless win under s.20 and/or s.15 for example, if the PCP is justified having regard to wider considerations, but reasonable adjustments ought to have been made in the individual case and/or the unfavourable treatment would not then have occurred. [HC §256]

Reviewing the County Court’s decision on indirect discrimination

The High Court said it follows from the above that the High Court agreed with the university’s lawyer that the County Court was wrong in dealing with justification in relation to ss.15 and 19 compendiously. The County Court did not appear to have appreciated the difference, in terms of what was being justified and the evidential perspective, between the two sections. Nor did the County Court use the language of proportionality. Overall, the County Court did not carry out an adequate assessment of justification in the context of s.19. [HC §257]

However, the High Court was not prepared to allow the university’s appeal against the decision that the university was liable for indirect discrimination. Again, the County Court’s approach reflected the way in which justification was argued by the university, which had the burden of proof to show the PCP was justified. The substance of the university’s arguments did not differentiate between ss.15 and 19. The university’s submission in respect of both claims was that it was proportionate only to vary the method of assessment if there was a proper evidential basis to do so and due process was followed. The university also relied on its submissions on the reasonableness of the proposed adjustments, but did not advance arguments specifically under s.19 as to the merits and disadvantages of oral assessment as a way of teaching or testing students. The university’s appeal on this therefore failed. [HC §258-259]

“Lesson” on the EqA

The High Court added:

267. For the avoidance of doubt, the lesson of this part of the case [ie on the EqA] is not that due process and evidence are unimportant where the question of reasonable adjustments arises in this context. They are important. There will no doubt be many cases where it is reasonable to verify what the disabled person says and/or to require expert evidence or recommendations so as to make well informed decisions. A degree of procedural formality will also generally be appropriate for the reasons which the University advanced. But what a disabled person says and/or does is evidence. There may be circumstances, such as urgency and/or the severity of their condition, in which a court will be prepared to conclude that it is sufficient evidence for an educational institution to be required to take action. That was the view of the County Court on the facts of this particular case.

[Below Comments: Knowledge of the disability, and formalities (reasonable adjustments)>Formalities, evidence]

Negligence claim (not decided)

This was an additional claim, not under the Equality Act (EqA) but a claim in tort (thelawyerportal.com). The County Court rejected this negligence claim because it was not satisfied that the university had a duty of care to Natasha. If there had been a duty of care, the County Court considered that 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 [CC §142-159].

The claimant appealed (strictly “cross-appealed”) to the High Court against this decision. However, the High Court did not express a final view on the issue. It was not necessary for the High Court to do so as it had upheld the award of EqA compensation, which included damages assessed on the same (tortious) basis as damages for negligence. [HC §268-270]

One reason for the High Court not expressing a final view was that, although the High Court had found that the County Court’s conclusions as to the reasonableness of the adjustments were open to it in the context of the EqA statutory test, and that the County Court was entitled to find that the university had not discharged its statutory burden of proof on this, it was highly doubtful that conclusions reached under the EqA could simply be mapped across to the common law of negligence, where the burden of proof in negligence was on the claimant. Any resolution of liability in negligence, if there were found to be a duty of care, would therefore likely require a re-trial. [HC §270(iv)]

[Below Campaign]

Further points in County Court decision

“Curriculum” defence in County Court

S.94(2) EqA excludes from the EqA provisions on further and higher education “anything done in connection with the content of the curriculum”.

The university initially argued that it could rely on this defence. In closing submissions to the County Court, however, it accepted it could not do so because the judgment of Warby J in the High Court 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 §51 of that judgment prevented it from arguing in the County Court 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 [CC §117-119].

The point does not seem to have been raised in the High Court.

*Ratio = ratio decidendi, broadly those aspects of a court’s decision which are binding on lower courts.

Unfavourable treatment under s.15: County Court

Did the university treat Natasha unfavourably because of something arising in consequence of her disability (Oral assessments at university: the rules>Discrimination arising from disability)? [CC §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)”. [CC §137]

The County Court said 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 [CC §138].

This was not disputed in the High Court. However, the High Court pointed out that the County Court’s reference to “direct discrimination” in [CC §138] is incorrect. Direct discrimination is s.13 EqA. However, the County Court is referring here to s.15, often known as “discrimination arising from disability”. [HC §116]

[Below Comments: Marking down was unfavourable treatment under s.15, despite possibility of extenuating circumstances]

Compensation: County Court

The County 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 [CC §160-165]. It also awarded the balance of Natasha’s funeral expenses, so far as not recovered in a claim against the NHS [CC §6, 166-167].

Given that the High Court upheld the university’s liability under the EqA, the amount of compensation was not disputed.

My comments

Comments: Importance for raising awareness

This case has no doubt raised 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.

See Oral assessments at university: the rules>How the Abrahart case may help.

Comments: First decided EqA claim by student against university?

So far as I can think, this is the first decided claim against a university by an existing student under Part 6 of the EqA (education). This 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). A County Court decision on a prospective student turned down for a university place was Koci v University College London [2014] All ER (D) 232 (Jan).

Comments: Competence standards

The reasonable adjustment duty cannot alter a university’s competence standard. However, here the court held that the competence standards did not require specifically oral skills to be assessed, so the oral assessment could be replaced by a written one if reasonable.

In deciding that the competence standard in this case did not relate specifically to oral skills (above Competence standards in this case (High Court), factors which were or may have been important include:

  • the university’s documentation did not map oral Intended Learning Outcomes (ILOs) through to the relevant module
  • the assessment criteria did not relate to oral skills
  • the Unit Director for this course module had given evidence that it was a core competence for the student to speak critically of their own work and this required communication but not necessarily in an oral way
  • there was evidence that for other students doing the same or almost the same course, recommendations from Disability Services included, for example, discussing alternatives to group work and presentations [CC §28].

The case is interesting in showing how a court may assess the evidence in deciding what is or isn’t a competence standard. Universities may now be more careful what their documentation says about competent standards.

The High Court was clear (above Competence standards: High Court) that even competence standards not within the reasonable adjustment duty can fall within other EqA provisions (see Oral assessments by universities: the rules>Don’t think only of reasonable adjustments}, and that methods of assessing competence standards can be subject to the reasonable adjustment duty.

The High Court pointed out that the EqA permits sensible conclusions on the facts of each case even if “competence standards” is given a narrow meaning: above Competence standards: High Court.

The High Court also makes interesting comments on being clear what the competence standard is and isn’t, in criticising Technical guidance which says that in relatively rare circumstances, the ability to take the test may itself amount to a competence standard: see Oral assessments at university: the rules>Abrahart case on process inextricably linked with competence standard. The High Court’s comments (apart from its talk of “fluency” in a French oral) seem to me thoughtful, and likely to help clarify these issues in future court cases.

I discuss competence standards at Oral assessments at university: the rules>Technical note: Competence standards (exception to reasonable adjustment duty). There I set out at some length what the High Court in Abrahart said, as it shows how the courts may approach decisions on what is a competence standard: Oral assessments at university: the rules>Competence standards in Abrahart case.

Comments: Knowledge of the disability, and formalities (reasonable adjustments)

The High Court says pretty much what I’ve previously suggested on this website, namely that what the university knew or ought to have known about the student or prospective student will be relevant to the question whether it was reasonable to take a given step or steps: above Relevance of knowledge: High Court. I think it is welcome we now have an appeal decision saying this. Of course the Court of Appeal or Supreme Court might take a different view, but it seems sensible to me. I discuss this in more detail, particularly in relation to stammering, on Universities: Knowledge of disability.

The High Court also affirms (above Relevance of knowledge: High Court) that the student need not have suggested the adjustments at the time, which follows well-established case law on employment: Reasonable adjustment rules: employment>Claimant need not have suggested adjustments at the time. However, the High Court adds that whether the student did so may be relevant to reasonableness.

In the present case the County Court was entitled to find it would have been reasonable to make adjustments given what the university knew or should have known: eg above Knowledge.

I suggest that a similar approach to knowledge might possibly be taken in the justification defence under s.15: Knowledge of causal link with disability under s.15 EqA>Justification defence: the new battleground?

Formalities, evidence

The case should also discourage universities from always insisting on formalities, like getting a recommendation from Disability Services before any steps can be taken. However, it may be reasonable to insist on due process and evidence, depending on the circumstances.

The university argued that it was reasonable for it to require proper expert advice in the form of a Disability Support Summary (DSS) from the university’s Disability Services, and/or medical evidence, before taking steps that had the effect of reducing the rigour of the academic assessment [HC §207, above Reasonable adjustments: High Court summary of arguments to County Court].

However, Natasha’s mental health disability made her unable to engage with the university’s processes and/or with strangers. The High Court held that the County Court was entitled to decide the university was obliged to make adjustments in the circumstances.

However the lesson of the case, said the High Court (above “Lesson” on the EqA, HC §267, worth reading in full), was not that due process and evidence are unimportant. There would no doubt be many cases where it was reasonable to verify what the disabled person said and/or to require expert evidence or recommendations, so as to make well informed decisions. However, it depends on the circumstances. The High Court also pointed out there that what a disabled person says and/or does is evidence.

I discuss this, particularly in relation to stammering, at Universities: Knowledge of disability>Is medical evidence required?

Burin & Atrey, Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (brookes.ac.uk, pdf), March 2024 (linked from journal article web page), point out that the reasonable adjustment duty was held to apply here even though Natasha did not have a reported disability, and there was no formal or official diagnosis of disability such as by a medical or health professional, or by the disability support services at the university. Further, the student was evidently not obligated to demand or discuss types of adjustments that may be needed, in contrast with the understanding that reasonable adjustments in the case of particular individuals should be raised by and discussed with the person concerned. The paper suggests that this approach might be seen as paternalistic, contrary to the motto “nothing about us without us”. If so, I don’t mind. The courts’ approach in the present case seems to me to give the courts the flexibility to decide what steps were reasonable in the circumstances, and universities’ approaches should reflect this.

Comments: What reasonable adjustments were accepted

The County Court decided, and the High Court held it was entitled to decide, that all the proposed adjustments were reasonable (Reasonable adjustments: High Court’s conclusion).

However the High Court specifically considered only the “most extreme” step advocated by the claimant at the hearing, namely abandoning the requirement for oral assessments and assessing Natasha by written work (including by answers typed “live” but remotely, which Natasha was using to interact with other students). I’ve added this possible adjustment at Oral exams and assessed presentations, including adjustments>Writing. As discussed at the link though, an online “live” chat facility may potentially have the disadvantage that the student feels under pressure to keep their answers relatively short.

The County Court was entitled to find the university had not shown the proposed adjustments were unreasonable, said the High Court. See below as to the burden of proof having shifted to the university.

Comments: Burden of proof for reasonableness of adjustments

The High Court said the burden of proof had shifted to he university to show that the proposed adjustments were not reasonable: above Reasonable adjustments: High Court’s conclusion [HC §164, 223]. The County Court was entitled to find the university had failed to show they were not reasonable.

This is in line with other cases on the burden of proof in the reasonable adjustment duty: see Reasonable adjustments by service providers: rules>Burden of proof.

Comments: “Reactive” or “ad hoc” adjustments

I welcome the implication of the High Court decision that the reasonable adjustment duty on universities includes a duty to react to a particular student’s needs, rather than only taking an “anticipatory” approach: Ad hoc adjustment duty on service providers. However the court did not really discuss this issue.

The High Court acknowledged that the reasonable adjustment duty towards students is “anticipatory”, so that universities should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself: [HC §157-161], separate page Reasonable adjustments by service providers.

Various cases related to the “anticipatory” nature of the duty indicate that whether there is a substantial disadvantage, and what steps are reasonable, are decided by reference to people with the same kind of disability rather than the individual disabled claimant: Reasonable adjustments by service providers: rules>Two-stage legal test. Those issues are at stage one (the “group” stage) of a two-stage test. The High Court (and County Court) did not address this two-stage test. For example, the High Court seems to have gone on the basis that it was enough for just the claimant to be at a substantial disadvantage: eg HC §8, §222(iv)(v). Similarly, in deciding what steps were reasonable, the courts focused on the individual case.

In the same way, the courts in this case do not seem to have considered the reasonable adjustment duty in an “anticipatory” way, but rather as a “reactive” or “ad hoc” duty – looking at what it have been reasonable for the university to do in response to the difficulties Natasha was evidently having. This is a point made by Burin & Atrey in Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (brookes.ac.uk, pdf), March 2024 (linked from journal article web page).

The High Court decision does not discuss how its approach fits with previous case law on the two-stage test. To my mind, the two-stage test and the related “anticipatory” perspective require clarification by the courts. Hopefully they will still very much allow for ad hoc or reactive adjustments, based on what is required in the individual case: Ad hoc adjustment duty on service providers. (Also, even if the courts had applied the group test on the evidence in the present case, I think it likely the claim would have succeeded.)

Comments: Relevance of Natasha rejecting adjustment at the conference?

Burin & Atrey in Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (brookes.ac.uk, pdf), March 2024 (linked from journal article web page) suggest this case indicates that the reasonable adjustment duty applies even if the student declines the adjustment. They point out that the university had told Natasha she did not have to speak at the conference if she did not wish to do so, provided her contribution was clear. Natasha had replied that she would participate in delivery of the presentation [HC §85].

However, this adjustment – suggested to her by one of the university staff -does not seem to have been one of the adjustments argued for by the claimant and upheld by the courts. The High Court at HC §222(iii) pointed to how limited the suggested adjustment was. It went on to say that, in any event, the key point was that (whether or not what the university had done should be regarded as adjustments) Natasha remained at a substantial disadvantage and the university had not taken all reasonable steps to avoid that. Also, the university does not seem to have complained to the High Court that the County Court found an adjustment reasonable despite Natasha having turned it down, so I don’t think one can draw any particular conclusion on the point from this case.

Arguably an adjustment declined by a student may sometimes have been “made” by the university. If not, the student’s response would doubtless be an important factor in the court assessing what steps it was reasonable for the university to have to take.

Comments: Justification defence

On points from the case regarding justification under ss.15 and 19 EqA, see:

Comments: Marking down was unfavourable treatment under s.15, despite possibility of extenuating circumstances

The County Court unsurprisingly held that marking Natasha down for the assessed interviews was unfavourable treatment, even though she might be apply to perhaps get that changed based on extenuating circumstances: above Unfavourable treatment under s.15: County Court. This was not appealed. See generally Oral assessments at university: the rules>S.15: Wide scope.

Further, the possibility of having marks revised for extenuating circumstances was found not to be sufficient reasonable adjustment: above Continuing to mark her down.

Comments: Curriculum defence

In the County Court 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. However, it is not mentioned in the High Court judgment: above Curriculum defence.

I discuss this defence at Oral assessments at university: the rules>Curriculum defence. It allows universities to teach (and doubtless assess) a full range of ideas and materials even though some students may find them offensive. However, 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 EqA protection. I would argue that legally a university cannot use the defence in this type of case. Also, like the High Court says in connection with the exception for competence standards (above), the EqA permits a sensible result based on the facts of each case even if the curriculum defence is read narrowly.

Given the County Court found that oral testing was not required by a “competence standard” (above) in this case, it might well also have found that oral testing was not part of the “curriculum”.

Campaign

The High Court did not review whether universities have a common law duty of care here: above Negligence claim (not decided). Natasha’s parents and other families have launched a campaign for a statutory duty of care for students in higher education, to recognise that universities should owe a legal duty to exercise reasonable care and skill when teaching students and providing support services:

Appeal?

The High Court decision may yet be appealed to the Court of Appeal.

On the campaign, see above Campaign.

BBC documentary, 2019 (starts 30 seconds in)

Links on my website

20th anniversary of stammeringlaw, 1999-2019