The Court of Appeal upheld a decision that sufficient reasonable adjustments had been made for a student with multiple sclerosis taking a professional law exam. The issue of whether the time limit for the exam was a competence standard and therefore not subject to the reasonable adjustment duty did not have to be decided.
Court of Appeal, February 2012.
Full Court of Appeal decision: www.bailii.org/ew/cases/EWCA/Civ/2012/37.html
Previous EAT decision: www.bailii.org/uk/cases/UKEAT/2011/0301_10_0803.html
Facts
The case concerned adjustments to examinations at the end of the Legal Practice Course (LPC), at the College of Law in Guildford. The course and exams are part of the process of qualifying as a solicitor. There was evidence that rather than being an academic course, the LPC aimed to prepare students for practice as a Trainee Solicitor. Teaching methods and assessments in the LPC were designed to replicate transactional aspects and the day-to-day working life of a solicitor.
The student had multiple sclerosis, leading to stress, fatigue and tiredness. The College of Law made numerous adjustments to the LPC exams, for example 60% extra time, splitting each exam paper into two parts, rest periods, and paying for accommodation at the YMCA in Guildford to remove the stress and fatigue of the student having to travel from his home in Brighton (see list of adjustments in box). Even so, the student failed the exams.
The student claimed that sufficient reasonable adjustments had not been made. He argued that not enough extra time had been allowed, and that he should have been allowed to sit the exam at home.
He also contended that the College should have found better accommodation for him. This argument was considered to have no merit because the student had seen the accommodation in advance and had made no complaint about it during the course of his examinations.
Adjustments the College agreed to make:
- 60% extra time;
- May hand write or use an amanuensis (who may also be required to act as a reader) or use a computer (to be supplied by the College);
- Stop the clock limited to 15 minutes per hour or pro-rata (based on the extended time) to be taken as and when required;
- Extra desk;
- High backed chair with adjustable arms; Own room;
- Exam questions and any advance reading to be provided on cream coloured paper;
- Exam room on ground floor or accessible by lift;
- Exam timetable to be adjusted as per the schedule in the confidentiality agreement to split each examination paper into two parts (the examinations were split to ensure that none lasted for more than two hours);
- Mr Burke to sign a confidentiality agreement in relation to any examination or part thereof which is thereby postponed;
- Accommodation at the YMCA, Guildford throughout the exam period to be paid for by the College.
Employment Appeal Tribunal (EAT) decision
The EAT upheld the Employment Tribunal decision that –
- the time requirement was a competence standard under s14A(5) Disability Discrimination Act, so the duty to make a reasonable adjustment did not apply to it; and
- in any event, adequate reasonable adjustments had been made.
The EAT quotes the employment tribunal as having said it was decided at a previous tribunal hearing that both the College of Law and Solicitors Regulation Authority are qualifications bodies. (Note: As regards the College of Law now being the University of Law, see below Qualifications bodies.)
Court of Appeal decision
The Court of Appeal upheld the decision on the basis of 2 above, namely the Employment Tribunal had found that adequate reasonable adjustments were made, including to the time requirement. The Court of Appeal therefore did not consider whether the time requirement was a competence standard.
Time requirement as competence standard? (not decided by Court of Appeal)
If the time requirement were a competence standard, the reasonable adjustment duty would not apply to it (ss.14A-14B Disability Discrimination Act 1995).
Various arguments were put forward as to why the time requirement was a competence standard:
- the exam papers were drafted to enable a candidate to demonstrate skill and knowledge and marshal those attributes under time pressure as an essential part of working as a solicitor;
- this was important because of the workload of most solicitors and the widespread use of time recording as a basis for calculating client charges, firm profitability and fee earner productivity;
- solicitors and their trainees often work under pressure and extreme time constraints and need to react quickly to the needs of a client, or other deadlines – whether imposed by the client, a court or tribunal or another party to a commercial transaction for example.
In granting leave to appeal from the EAT to the Court of Appeal, Lewison LJ had decided –
- it was clear that the ability to work under a time constraint was a competence and that an appeal against that finding had no real prospect of success.
- But it did not necessarily follow that sitting the LPC exams under the particular time constraint the College generally imposed was a competence standard. Lewison LJ seems to have considered that the claimant had a real prospect of success in arguing that the time requirement should be seen as part of the mode of testing the ability to work under time pressure, so that it was not itself a competence standard and the reasonable adjustment duty could apply. However, he did not decide whether the time requirement was a competence standard. Lewison LJ had said:
“However, Mr Nicholls had another more subtle point. Accepting that the ability to work at speed under time pressure is part of the competence which the examination is designed to test, the question then is: how do you test the ability to work at speed under time pressure? That, he said, is a mode of testing and not the standard itself. If the mode of testing the ability to work under time pressure is part of the way in which that particular competence is assessed, then in principle it is capable of being subject to the statutory duty to make reasonable adjustments. Put in that limited way, I consider that that point does have a real prospect of success. It is, I think, a general point applicable to examinations in general and that in my judgment provides sufficient reason for the grant of permission limited to that ground, even though this would be a second appeal.”
Further summary of the case on College of Law defeats discrimination claim in appeal court (archive of thelawyer.com).
My comment
This case was decided under the Disability Discrimination Act 1995. For the equivalent rules under Equality Act 2010, which now applies, see Professional exams.
Competence standards themselves should be justifiable
Equality Act 2010 has the same rule as ss.14A-14B DDA – that competence standards in professional/trade exams (and university exams) are not subject to the reasonable adjustment duty. However, there may be an Equality Act claim even if the time requirement is a competence standard so the reasonable adjustment duty does not apply. Under Equality Act 2010, the time requirement could be unlawful as ‘indirect discrimination’, unless the objective justification defence applies. For exams other than professional/trade exams, ‘discrimination arising from disability’ can also apply – again subject to the objective justification defence.
Why was the ‘objective justification’ test not raised in this case? Probably because before the Equality Act 2010 the claimant would not have been able to show there was ‘disability-related discrimination’ given the way it had been restricted by the Malcolm case. See London Borough of Lewisham v Malcolm: Exams – a special problem in Northern Ireland? The Equality Act 2010 has now introduced new types of claim to deal with the problem caused by the Malcolm case (except in Northern Ireland).
Competence standard as ‘working within time constraint’ versus the particular ‘time requirement’
According to an example in the post-16 education 2007 Code of Practice (para 5.74): “A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period.”
This Burke case seems to indicate the distinction may be more subtle. Lewison LJ appears to have accepted that there was real prospect of succeeding with an argument that a competence standard of being able to work under time constraint need not mean the particular time requirement adopted for the exam was a competence standard. It might still be arguable (presumably) that the time limit for the exam was subject to the reasonable adjustment duty, even if it was legitimate to test one’s ability to work within a time constraint.
Boundaries of what is a ‘competence standard’ may not necessarily be important in practice
The distinction will not necessairly be imporant in practice. If the ‘time requirement’ is itself a competence standard, the qualifications body may find it that much harder to show that the particular time requirement (eg 3 hours) meets the ‘objective justification’ test. If the competence standard was, say, ability to work under a time constraint, that may be easier to objectively justify – but the main argument could shift to whether an adjustment should reasonably have been made.
Arguments to justify testing ability to work within limited time
The case includes arguments aimed at justifying assessment of the student’s ability to work under time pressure, in the context of this professional exam seeking to test competencies for becoming a solicitor. These arguments would be relevant to take into account in deciding –
- how far any extension of time is reasonable (if the reasonable adjustment duty applies in principle), and
- whether the competence standard (be it ability to work under time pressure or the particular time requirement) satisfies the objective justification test.
Qualifications body
In the present case of Burke, it had been decided by an employment tribunal (and was not appealed) that both the College of Law and Solicitors Regulation Authority were qualifications bodies.
However since Burke the College of Law has become the University of Law. The Court of Appeal has now held in Nwabueze v University of Law Ltd, 2020, that this is a university, and may have been at the time of Burke. Therefore any claim by a student had to be to the County Court rather than to an employment tribunal. See Professional exams>Universities etc.
