Professional exam bodies

Sections 53 and 54 Equality Act 2010 prohibit disability discrimination by professional and trade qualifications bodies, including in professional exams. Examples include the General Medical Council and Medical Royal Colleges and Faculties for doctors.

STAMMA and the NHS Stammering Network have now produced a Job-based oral exam guide (stamma.org), March 2023, mainly for OSCE exams in the health sector. It is not yet reflected on most of this page. Below: Guide by STAMMA and NHS Stammering Network.

Summary

• This page focuses particularly on professional exam bodies in relation to OSCE medical exams, though similar principles should apply elsewhere. I set out below some points on Seeking OSCE adjustments.
• Somewhat different legal rules apply to a university, including where a medical school is part of a university: below Universities. Even so, the discussion of OCSEs here should also be helpful if a university is running the OSCE exams.
• In summary, professional exam bodies (called in the EqA “qualifications bodies”) have a duty to make reasonable adjustments, provided they have sufficient knowledge of the disability and disadvantage. The adjustments must be consistent with competence standards being assessed, so the adjustments cannot alter what competence standards are (lawfully?) assessed – but there are significant uncertainties (below).
• Competence standards can still be challenged under the EqA. If a competence standard disadvantages people with a particular disability, the qualifications body can be liable for indirect discrimination unless the body shows the standard is a proportionate means of achieving a legitimate aim (“justification”).
• There is a more detailed Legal summary below.
• Issues discussed below include how far an exam body has a right to insist on medical evidence, such as a report from a speech and language therapist, and particularly whether the candidate needs to pay for it.

On this page I deal first with reasonable adjustments, since they are by far the most common thing sought under the EqA in professional exams. Given the uncertainties around how far the right to reasonable adjustments is limited by competence standards (discussed much further down this page), I think there is a lot to be said for applying for whatever adjustments seem reasonable.

The General Medical Council should be liable as a qualifications body (under ss.53 & 54 EqA) in the PLAB tests for doctors who qualified overseas.

The Medical Royal Colleges and Faculties would presumably be liable as qualifications bodies (under ss.53 & 54) in conducting their postgraduate exams for particular medical specialities.

Example: In exams for a medical degree, if decisions about reasonable adjustments are a matter for the medical school (part of a university), the medical school presumably has a duty to make reasonable adjustments for its students under the normal anticipatory reasonable adjustment duty on universities (below), in Part 6 EqA. Even so, the discussion on this page of reasonable adjustments in OSCEs should also be helpful if a university is running the OSCE.

Seeking OSCE adjustments

The STAMMA helpline (stamma.org) may be able to help in obtaining these. See too STAMMA’s guide, below.

OSCE exams

This page focuses particularly on medical OSCE exams (wikipedia.org), eg for doctors and nurses, where candidates have to go round different “stations” examining or performing a procedure on a mock patient at each. These are a particular issue for people who stammer.

However the principles should also apply for other types of professional oral exam.

Also even though this page focuses on professional exam bodies, the discussion of OSCEs should be helpful even if a university (below) is running the OSCE.

Guide by STAMMA and NHS Stammering Network

STAMMA and the NHS Stammering Network have produced a Job-based oral exam guide (stamma.org), March 2023, mainly for OSCE exams in the health sector.

Anyone who is seeking – or supporting a request for – adjustments to these scenario-based professional exams, in respect of stammering, should be looking at this guide.

As well as a general introduction (for people who stammer), it includes a guide for speech and language therapists etc who are producing a report in support of a request for adjustments.

The guide is not yet reflected on the rest of this web page. I haven’t yet reviewed how far I should make changes to reflect it.

Seeking OSCE adjustments: What adjustments may be reasonable

A person who stammers will often be at an obvious disadvantage in an oral exam with time limits. However exam bodies may seek to resist adjustments to alleviate a disadvantage which the person will face in the actual workplace. One can argue to what extent it is legitimate for the body to resist those: see below Arguments on what is reasonable and/or justified. However here I outline bases for adjustments which I think may be easier to argue for, with some examples of possible adjustments.

1. Compensating for increased effects of stammer in exam compared with workplace

OSCEs are likely to try to replicate the workplace situation, to a large extent. Despite this, a stammer may well be more severe – perhaps much more severe – in the OSCE than in the workplace. For example this may be due to exam nerves, the importance of the exam to the person’s career, the presence of examiners, and knowing it is a ‘false’ situation with actors. It is competence in the workplace that matters, not in the exam situation. Candidates might – and do – therefore seek adjustments, including extra time, to compensate for increased effects of the stammer in the exam beyond how it is in the workplace. The greater the increased effect, the greater the adjustments they might request. I get the impression that it is not unusual for this (including extra time) to be accepted by exam bodies. Examples of adjustments include:

• More time at each station.
  (In one American case, Hartman v National Board of Medical Examiners, the medical examining board had agreed double the normal time. Also Technical Note: Time limits (below).)
• Breaks to recover from the effort of stammering, and from any extra-long sessions
• If it would reduce the effects of the stammer (through greater predictability reducing anxiety and nervousness), receiving a list of stations and their order in advance, for example half an hour before each session.
• Spreading the exam over, say, two days if required to allow for extra time and any breaks

A more radical alternative, which I haven’t heard being asked for, is perhaps to take into account evidence from senior clinicians of the person’s abilities in the actual workplace, given it is those abilities which really matter.

Hartman v National Board of Medical Examiners, United States District Court for the Eastern District of Pennsylvania, 2010
The medical examining board in this U.S. case had already agreed that the claimant could have double time for each patient encounter, and replace telephone patient encounters with in-person encounters.
Note: Extra time has also been agreed in British OSCE exams.

See also below Arguments: How is the person’s communication in an actual work situation?

2. Misunderstanding effects of stammer

Adjustments may seek to avoid effects of the stammer being mistaken as the person being unsure, or less competent. I get the impression this is normally accepted by exam bodies. Examples of adjustments:

• Before the exam, examiners and actors being given information about stammering but also, importantly, about that particular individual’s stammer and its effects, including hidden effects, and on how to respond as a listener: Examples of reasonable adjustments: Recruitment>Information about the individual’s stammer. Effects of the stammer may otherwise be mistaken as the individual being unsure, or less competent. Effects will be different for different individuals and so should be tailorerd, but might include:
  • hesitations etc which might otherwise be seen as uncertainty or not knowing the answer
  • not using particular terminology the person finds difficult to say.

A further possible adjustment, which may be more controversial, is examiners not marking the candidate down for consequences of the stammer, such as hesitations and using different terminology as described in the information given to them. Exam bodies may potentially argue some effects of the stammer could be relevant to competence standards justifiably being assessed.

Case study: In an OSCE exam it was agreed the examiner would be informed about the candidate’s stammer and how it affected him, and would be asked to take account of the stammer and not mark him down if his performance was affected by the stammer.
UK case study (archive of equalitytalk.org.uk), scroll down to “Case study: initially inappropriate adjustment in medical exam (UK)”.

3. Ways in which OSCEs do not replicate workplace, such as explanations to examiner

There may be particular ways in which OSCEs do not replicate the workplace which may justify further adjustments, such as where the candidate is expected to explain things to the examiner. Examples of adjustments include:

• If the examinee is expected to give explanations to the examiner (which would not be so in the workplace) additional time and any other adjustments for that. For example if the person would normally be expected to give a running commentary to the examiner but that significantly slows things down, it might be agreed they could give a summary at the end instead, with extra time for doing so.

Other examples of adjustments

There are further examples in the context of universities at Oral exams and assessed presentations>Examples of how exams can be altered.

Seeking OSCE adjustments: Professional report

Exam bodies will normally expect candidates to back up the request for adjustments with a report from an appropriate professional, such as a speech and language therapist. See also on these below Seeking OSCE adjustments: Knowledge.

Cost of medical evidence

There is doubt whether an exam body can legally require an exam candidate to pay for any medical evidence it requires: below Knowledge, medical evidence, and who pays for it>Does the individual have to pay for medical evidence?

Seeking OSCE adjustments: Competence standards

Technically the reasonable adjustment duty does not apply to what competence standards can be assessed, as there should be a single set of standards for everyone. However if a competence standard disadvantages disabled people, the qualifications body can be liable for “indirect discrimination” (below) unless the body shows the standard is a proportionate means of achieving a legitimate aim (“justification”).

This is a difficult area though, meaning there is often uncertainty around how far the right to reasonable adjustments is limited by competence standards: below Competence standards: uncertainties. (An exam candidate will normally prefer to claim reasonable adjustments, rather than have to argue the competence standards are indirect discrimination)

Particularly given those uncertainties, I think there is a lot to be said for applying for whatever adjustments seem reasonable, albeit bearing in mind that a professional body may sometimes use competence standards as an argument to resist certain adjustments.

Seeking OSCE adjustments: Knowledge

A qualifications body (the rules are a bit different for universities, below) is only required to make reasonable adjustments if it has actual or constructive knowledge of

• the disability – ie of facts that mean the stammer is a disability within the EqA – and
• the disadvantage at which the disabled person is likely to be put by the exam arrangements. The disadvantage must be “substantial”, but this means only “more than minor or trivial”.

For more on this, see below Knowledge. Broadly “constructive knowledge” includes what the body would have found out had it made the enquiries it could reasonably be expected to make. (An alternative type of claim, under s.15 EqA, only requires knowledge of the disability.)

It is prudent for the candidate to ensure the examining body is told – for example in the professional report (below) – of ways in which the exam puts them at a disadvantage compared with non-disabled people, at least so far as the candidate is seeking adjustments for the disadvantage. Possible disadvantages include:

• not being able to say so much within the time limits, compared with non-stammerers,
• difficulty using certain terminology because the person finds it difficult to say,
• exhaustion from the effort of stammering,
• the stammer’s effects being mistaken as uncertainty etc.

The professional report (above) will normally set out ways in which the candidate is put at a disadvantage by the exam. The report may focus on effects of the stammer only so far as reasonable adjustments are sought for them. For example in supporting a request for extra time, the report may focus on the difference between the candidate’s abilities to communicate in the workplace compared with in the exam (above Compensating for increased effects of stammer in exam compared with workplace). That disadvantage compared with how the individual candidate is in the workplace may be less than the disadvantage compared with non-stammerers. The latter seems to be the “disadvantage” mentioned in the Equality Act, though arguably it is reasonable to alleviate it only so far as it is greater than how it is in the workplace. Anyway I would expect the report’s disclosure of the disadvantage compared with the workplace to be sufficient provided it is more than minor or trivial.

On a technical point, it seems that provided the exam board has actual or constructive knowledge of the individual being at a more than minor or trivial disadvantage in the exam compared with non-disabled people, the body does not need knowledge that eg effects of the stammer are greater in the exam in the workplace, as this relates to reasonableness: see Tarbuck v Sainsburys in Reasonable adjustment rules: employment>Consultation. I discuss a similar point at Oral assessments in recruitment>Employer’s knowledge about difference in situation>Reasonable adjustment duty. In practice it makes sense to tell the exam body anyway though!

Seeking OSCE adjustments: Suggesting specific adjustments so far as possible

It is clearly sensible for the candidate to suggest specific reasonable adjustments to the qualifications body so far as the candidate can.

However the qualification body’s duty to make reasonable adjustments can go beyond anything suggested by the candidate at the time of the exam, provided the body has the requisite knowledge of the disability and disadvantage: below Adjustment may not have been suggested at time of exam. It may therefore be worth letting the body know of any disadvantage even without being able to suggest a specific adjustment – to put it on notice legally, and it may be able to propose an adjustment.

Seeking OSCE adjustments: Applying for adjustments well in advance

Practicability will be a relevant factor in deciding what adjustments are “reasonable” (Reasonable adjustment rules: employment>Reasonableness). For example some adjustments requiring extra time or even extra days may require substantial advance notice as they may necessitate arrangments for both personnel and physical space to be available for longer. So it will normally make sense to apply for any adjustments as early as possible.

Arguments on what is reasonable and/or justified

I suggest the following may be some relevant arguments as to whether an adjustment is “reasonable” (below), or whether a competence standard is “justified” as a proportionate means of achieving a legitimate aim: Indirect discrimination: Objective justification (below). They largely take the OSCE as an example, and were written thinking particularly of extending time limits. However similar points will apply to many professions or trades, and to other types of adjustment. Relevant arguments are likely to be similar whether the issue is reasonableness or justification.

See also above Seeking OSCE adjustments: What adjustments may be reasonable.

Arguments: How is the person’s communication in an actual work situation?

See too above Compensating for increased effects of stammer in exam compared with workplace.

The stammer may well be more severe in the exam, for example due to increased anxiety. This will often be set out in the professional report. If the report is not sufficient: If the person has done work placements, is speech an issue there, and does it get in the way of doing the job?

For a similar point on job interviews see Oral interview not appropriate way to assess oral skills, as exemplified in the American Ohio firefighter case where a firefighter was rejected because he stammered in the interview. This was held illegal because his stammer did not interfere in the different situation of dealing with a fire. (Compared with deciding what adjustments are “reasonable”, an individual’s particular circumstances may be less relevant when deciding in an indirect discrimination claim whether competence standards are “justified”: Group test for objective justification of indirect discrimination? But in practice the individual circumstances are still likely to be taken into account.)

Say a person can perform fine in the workplace (perhaps with testimonials from senior doctors), but their stammer has a greater effect in the oral exam. This could be an argument that any justified competence standard should focus on ability to perform in the workplace, opening up a greater range of possible reasonable adjustments where examiners might take account of performance at work.

Arguments: Different types of job

Is it justified to insist that the professional must have that particular oral ability, given the different types of job available? In the case of a doctor, for example, are there some types of doctor for which those OSCE abilities within particular time constraints are not required? In a U.S. case, Hartman v National Board of Medical Examiners, the exam candidate intended to enter pathology which would involve little or no contact with patients. There may be further roles where doctors have contact with patients but ability to meet all the OSCE requirements is not required.

Arguments: Matter between employer and employee, and relevance of adjustments in workplace

Linked with that, are particular oral abilities better seen as a matter between employer and employee, bearing in mind the employer’s duty to make reasonable adjustments, and also bearing in mind the duty of a professional to recognise any limitations in their abilities? (Any professional has limitations.)

It might also be argued that any adjustments that should reasonably be allowed in the workplace should be allowed in the exam, since the employer would be obliged to make reasonable adjustments and it is abilities in the workplace that matter (cf Oral assessments in recruitment>Allowing for reasonable adjustments in the workplace). If adjustments are too dependent on the particular workplace, that might again be an argument that certain things are better seen as a matter between employer and employee rather than to be tested in the professional exam.

Arguments: Stammer starting in later life

What is the position if a doctor develops a stammer in later life, such that they would be unable to pass the OSCE exams within those particular time limits. Are they then debarred from practising? If not, why should the exam candidate with a stammer be barred from becoming a doctor? Are those time limits really necessary professionally? (Compare the example in para 8.36 of the 2008 Code, where a fitness standard required was likely to be unjustified given it was much higher than many people actually working in that job could now achieve).

Arguments: Other countries

It may be relevant what medical examining bodies in other countries see as necessary to ensure the expertise of their medical profession. Going back to the US case of Hartman v National Board of Medical Examiners, there the medical examining board had already agreed that the claimant could have double time for each patient encounter, and replace telephone patient encounters with in-person encounters. (The dispute was about whether he should also be allowed to use a text-to-speech device.)

In Prigge v Deutsche Lufthansa AG (baillii.org), 2011 the ECJ held it was not justified for the German airline Lufthansa to compulsorily retire pilots at age 60, where international agreements fixed the compulsory retirement age for pilots at 65,

Legal summary on qualifications bodies

Bodies (other than universities and FE (below) to which different rules apply) conducting professional and trade exams are subject to the Equality Act under ss.53 and 54. Key points are:

• Unlike most education disputes, a claim against a professional qualifications body goes to the employment tribunal (unless a statutory appeal is available as with the GMC), rather than to the County Court, or sheriff court in Scotland. This means the time limit for bringing a claim is generally 3 months, not 6 months. The time limit runs from when the discrimination happened. Internal complaints or appeals do not pause the time limit.
• The reasonable adjustment duty does not apply to what competence standards (below) can be assessed, as there should be a single set of standards for everyone. However the body is obliged to make reasonable adjustments to the process by which it assesses the competence standards – for example whether assessment is oral or written, unless the competence standard specifically relates to eg oral skills. Unlike a university’s duty to students, the duty is individual-based (like the duty on employers) rather than anticipatory. Below Reasonable adjustments: process for assessing competence standards.
• However a competence standard can be challenged under the Equality Act by way of a claim for indirect discrimination under s.19 EqA. If the competence standard disadvantages disabled people, the qualifications body can be required to show it is a proportionate means of achieving a legitimate aim, bearing in mind its detriment on disabled people. For example the standard should not disadvantage disabled people more than need be. This is called “objective justification”. Below Indirect discrimination: What competence standard can be applied. In various ways the law around competence standards remains unclear though: below Competence standards: uncertainties.
• One tricky question that can arise is whether a time limit in a particular case is subject to the reasonable adjustment duty, or exempt from that duty as a competence standard. However even if not subject to reasonable adjustments, it can still be indirect discrimination so that the qualifications body must show the time limit is objectively justified. Below Technical note: Time limits.
• At least for some types of claim, the qualifications body has a defence if it did not know of the disability, and sometimes the relevant disadvantage: below Knowledge, medical evidence, and who pays for it. There is doubt whether a qualifications body can require an exam candidate to pay for any medical evidence of disability it requires: below Knowledge, medical evidence, and who pays for it>Does the individual have to pay for medical evidence?
• These rules in ss.53 and 54 EqA apply for example to the General Medical Council (doctors), Transport for London and local authorities (taxis and private hire drivers) and the Gas Safe Register (gas engineers). Universities and FE colleges are subject to their own (wider) rules. Also this page focuses on exams, but “qualification” is very broadly defined. Accordingly these rules in ss.53-54 can apply well beyond exams, for example where membership of an association facilitates engagement in a particular profession, or perhaps in deciding whether a police officer has completed their probationary period. Below What is a “qualifications body”?

What is a “qualifications body”?

Under s.54 EqA a qualifications body is an authority or body which can confer (or renew or extend the conferment of) an “authorisation, qualification, recognition, registration, enrolment, approval or certification. which is needed for, or facilitates engagement in, a particular trade or profession.” This definition is subject to some exceptions (below) – such as universities – which are mostly covered by other parts of the Equality Act. The definition of qualifications body is discussed at para 8.5 to 8.8 of the 2008 Code of Practice.

Examples of qualifications bodies include the General Medical Council (doctors, Michalak below), Transport for London and local authorities (taxis and private hire drivers), the Solicitors Regulatory Authority (Nwabueze v University of Law) and the Gas Safe Register (gas engineers).

There need not be an exam. Also the qualification, authorisation or enrolment etc may only facilitate engagement in a particular trade or profession, rather than being required. For example para 8.6 of the 2008 Code of Practice says “In some cases, simply being a member of an organisation or body may amount to such a qualification if membership itself facilitates engagement in a particular profession or trade”.

The 2008 Code discusses certain situations where both educational institutions and an external body are involved:

8.8 In relation to certain professions or trades, educational institutions or other bodies may devise, run and examine their own courses, although approval for entry into the profession or trade is controlled by an external body. Because of the wide definition of ‘professional or trade qualification’, such external bodies are likely to be qualifications bodies if they perform any of the following functions:

• maintaining a register of people who are qualified to practice in the profession or trade
• conducting additional tests for people who have qualified, or who wish to qualify, into the profession or trade, such as basic skills tests or medical checks, or
• giving approval for a person’s qualification to his course provider.

Pemberton v Inwood (bailii.org), Court of Appeal, 2018
A Bishop was held to be a qualifications body in respect of his refusal to grant to a Canon an “Extra Parochial Ministry Licence” which was a necessary requirement to be appointed as Chaplaincy and Bereavement Manager in a hospital within the Diocese.

Hart v Chief Constable of Derbyshire (bailii.org), EAT, 2007
The Employment Appeal Tribunal raised the possibility, without deciding the point, that a police authority might be seen as a qualifications body in deciding whether an officer had completed their probationary period. See also the refusal of leave to appeal to Court of Appeal (bailii.org) in that case.

Exceptions from definition of “qualifications body”

Some bodies within the general definition above are not treated as “qualifications bodies” The main ones – in s.54(4) – are bodies already covered by other provisions of the Equality Act. These other EqA provisions often give greater rights than ss.53 and 54: see Services: Which rules apply? Exams. Exceptions from the definition of “qualifications body” include:

• universities, FE colleges (below) and other bodies covered by s.91 EqA,
• schools covered by s.85 EqA,
• bodies (exam boards) for GCSEs, A-levels and the like falling within s.96 EqA.

Universities (Part 6 EqA)

A university or other body within s.91 EqA is excluded from being a “qualifications body”, even as regards professional exams (s.54(4)). A university cannot be a qualifications body even for part of its activities: Nwabueze below. It is instead subject to the rules in Part 6 of the Equality Act, as discussed at Oral assessments at university: the rules. See the example below. This means there are certain differences in the EqA rules (below) on professional exams so far as a university is responsible for them, for example claims against the university do not go to an employment tribunal:

Nwabueze v University of Law Ltd, Court of Appeal, [2020] EWCA Civ 1526
The Court of Appeal held that the University of Law (previously the “College of Law”) was not a qualifications body, so a student’s claim against it had to go to a county court rather than an employment tribunal, even in respect of a professional solicitors exam. If a body is the governing body of a university, this displaces its status as a qualifications body. The court rejected an argument that a body is excluded from being a qualifications body only “to the extent that” it is a university.

Example on medical exams

Example: In exams for a medical degree, if decisions about reasonable adjustments are a matter for the medical school (part of a university), the medical school presumably has a duty to make reasonable adjustments for its students under the normal anticipatory reasonable adjustment duty on universities in Part 6 EqA. Even so, the discussion on this page of reasonable adjustments in OSCEs should also be helpful if a university is running the OSCE.

The General Medical Council should be liable as a qualifications body (under ss.53 & 54) in the PLAB tests for doctors who qualified overseas.

The Medical Royal Colleges and Faculties are presumably liable as qualifications bodies (under ss.53 & 54) in conducting their postgraduate exams for particular medical specialities.

Competence standards if both university and professional exam body involved

It may potentially be tricky to decide the best technical route to challenge discriminatory competence standards here. However I think there is scope for EqA claims.

A university’s degree – in particular the competence standards being assessed in it – may have to be approved by a professional body (such as the General Medical Council: Institutions awarding UK medical degrees and the new programmes process (gmc-uk.org)). Or there may be some other arrangement between professional body and university. In any situation one would need to consider the particular arrangements. However in broad terms, some possible claims include the following:

Claims to the employment tribunal (subject to s.120(7)):

• It might be argued that criteria for approval of university degrees required to be taken by applicants for professional registration are part of the “arrangements” made by a qualifications body for deciding who to register, so as to fall within s.53(1)(a) EqA. That would not be enough in itself, there needs to be discrimination as defined. So for example a claimant would also need to formulate the relevant provision, criterion or practice which they are arguing is indirect discrimination contrary to s.19 EqA.
• Assuming there is an EqA breach by the qualifications body (previous bullet point), arguably a university which applies a competence standard unlawfully required by a professional body might be liable under s.112 EqA (helping discrimination by the qualifications body). If the university were an agent of the body it could be liable under s.110 EqA.

Claims to County Court (sheriff court in Scotland):

• Could the university be liable under ss.19 or 15 EqA (Oral assessments at university: the rules) for applying an unjustifiably discriminatory competence standard, even though the professional body requires that? Perhaps. For example, in showing that a competence standard applied by a university is justified, ie a proportionate means of achieving a legitimate aim, the “legitimate aim” should be legal and not discriminatory in itself.
• Assuming there is a breach of ss.19 and/or 15 by the university, it might be thought the qualifications body is causing or inducing it so as to be liable under s.111 EqA, but s.111(7) may be a problem. Unless a claimant can argue the qualifications body is “helping” the university breach the EqA (s.112), the claimant might not have a claim against the qualifications body except in the employment tribunal (above). That is unsatisfactory particularly if the claimant has a related reasonable adjustment claim against the university which can only be brought in the County Court.

There are similar issues with university work placements, where related claims may sometimes end up in different courts: Work placements related to education courses>Which court?

Differences in EqA rules for universities vs qualifications bodies

Both universities and qualifications bodies are subject to a reasonable adjustment duty (except as regards competence standards), and in both cases discriminatory competence standards can be challenged through (one or more) other types of EqA claim. However there are some differences in the legal tests to be applied, and claims go to different courts. Differences include the following:

• Claims against universities and other bodies covered by EqA Part 6 (“Education”) normally go to the County Court, or sheriff court in Scotland). Claims against qualifications bodies normally go to the employment (or specialist) tribunal (below Disputes), because ss. 53-54 on qualification bodies are within Part 5 EqA, entitled “Work”.
• Universities have a duty to make reasonable adjustments (apart from competence standards), but this duty towards its students is “anticipatory”. So universities should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself. The anticipatory nature of the duty gives rise to some uncertainties on how far it extends to ad hoc adjustments and taking into account individual circumstances. However it can be argued the duty is wide: University and FE: the rules>Ad hoc adjustments and individual circumstances? The reasonable adjustment duty on qualifications bodies (and on universities to non-students) is instead like that on employers, focusing on any disadvantage to the individual candidate and what is reasonable in the case of that individual.
• Qualifications bodies have an express ‘lack of knowledge’ defence in the EqA. By contrast, linked with the anticipatory nature of a university’s reasonable adjustment duty towards its students (above), there is no express exception from this duty for a university which did not know of the disability or disadvantage. Even so the university may in effect have a defence if it did not know of the disability despite having taken all reasonable steps: Universities: Knowledge of disability>Reasonable adjustments. Also arguments on whether a university must meet the cost of medical evidence are technically different but may lead to much the same result as for a qualifications body: Universities: Knowledge of disability>Cost of medical evidence.
• Though the reasonable adjustment duty does not apply to what competence standards can be applied, for universities (and other bodies within Part 6 EqA) the exception for competence standards does not extend to claims for discrimination arising from disability (s.15). Against a qualifications body, competence standards can only be challenged by way of indirect discrimination. Against a university, a candidate might also bring a s.15 claim for being marked down (even though due to a competence standard) unless the university can show justification given that individual’s circumstances: Oral assessments at university: the rules.

Reasonable adjustments: process for assessing competence standards

Broadly the reasonable adjustment duty applies to anything other than what competence standard (below) may be applied (EqA Sch 8 para 15(2) and EqA s.53(7)). Therefore the reasonable adjustment duty applies to how competence standards are assessed (paragraphs 8.30ff and 8.20 of the 2008 Code). Examples of “how” they are assessed include whether the assessment should be oral or in writing, and how long should be given for an oral exam, unless these are dictated by the competence standard – eg ability to speak a language needing to be tested orally, or perhaps a competence standard to do something specifically within a particular time limit (below Situations where the assessment process is bound up with the competence standard).

(Despite that exception for competence standards, which in many respects is unclear, I think in practice there is often a lot to be said for applying for whatever adjustments seem reasonable: see above Seeking OSCE adjustments: Competence standards.)

The reasonable adjustment duty requires that where a provision, criterion or practice (PCP) – apart from a (lawful?) competence standard – applied by or on behalf of a qualifications body places a disabled person at a substantial (ie “more than minor or trivial”) disadvantage in comparison with non-disabled people, the qualifications body must take reasonable steps to avoid the disadvantage. PCP is a wide concept (Reasonable adjustment rules: employment>What is a “provision, criterion or practice” (PCP)?) and could include for example time limits, and assessing orally rather than in writing – if it is not a competence standard.

There is also a duty to provide auxiliary aids and services, and a duty in relation to physical features which put a disabled person at a disadvantage, eg stairs as regards a wheelchair user.

There are some examples of adjustments above, and also examples in the context of the broadly similar rules applying to universities at Oral assessments, and assessed presentations. However anything there which is a (lawful?) competence standard would have to be challenged through indirect discrimination rather than the reasonable adjustment duty. There is a technical note on time limits below.

Burke v College of Law, Court of Appeal, 2012
Sufficient reasonable adjustments (including extra time) were held to have been given to a student with multiple sclerosis who was taking exams to become a solicitor. His claim therefore failed.

The 2008 Code deals with the reasonable adjustment duty at para 8.15 to 8.26. Apart from competence standards, the legal rules are essentially the same as for employers generally, discussed at Reasonable adjustment rules: employment. There is some technical detail on who can claim against a qualifications body in EqA Sch 8 para 15.

Under EqA Sch 8 para 20 the reasonable adjustment duty does not apply if the qualifications body did not know and could not reasonably be expected to know of the disability and disadvantage: see below Knowledge, medical evidence, and who pays for it.

Adjustment need not have been suggested at time of exam

The claimant does not necessarily need to have suggested the particular adjustment at the time of the exam (Latif case below) – although of course it is advisable to do so if possible and the qualifications body does need actual or constructive knowledge (below) of the disability and disadvantage.

However by the time of the tribunal hearing there should be some indication of what adjustments the claimant alleges ought to have been made. The burden of proof then shifts to the qualifications body to show that the adjustment indicated would not have been reasonable. This shift in the burden of proof applies to reasonable adjustments in employment generally – Reasonable adjustment rules: Employment>Burden of proof – but was established in a case on a qualifications body:

Project Management Institute v Latif, Employment Appeal Tribunal (EAT), 2007
A blind woman taking a professional exam succeeded in her reasonable adjustment claim. The EAT upheld the employment tribunal’s decision that she should have been allowed to take the exam using screen reader software on a stand-alone computer at the test centre, onto which the exam questions had been entered in Word format.

Her claim succeeded even though she had not identified this particular adjustment at the time of the exam. The tribunal rejected the adjustments she had proposed at the time of the exam. The adjustment it upheld was one put forward by the claimant’s lawyer at the hearing. Putting it forward then had shifted the burden of proof to the qualifications body to show it was not reasonable. Part of the background though was that the Institute had adopted an inflexible approach without adequately listening to what the claimant had to say, and the tribunal considered that the proposed adjustment, or something like it, would have emerged had proper consultation occurred.

A case where the claim was against an employer, but the same rules apply:

British Telecommunications v Meier, Northern Ireland Court of Appeal, 2019
A job applicant was at a disadvantage in a situational judgment test because he had Asperger’s syndrome. This test was the initial stage in the recruitment process. The employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments. It did not matter that the claimant had not suggested at the time what reasonable adjustment he wanted.

Is reasonable adjustment duty excluded by an unlawful competence standard?

What if the tribunal finds that a competence standard is unlawful indirect discrimination (below) under s.19 EqA, because it is not sufficiently justified? Does the competence standard still exclude or limit the reasonable adjustment duty? This is not clear. However I think there is a real possibility that a court would find the standard does not exclude or limit reasonable adjustments so far as it is unlawful.

Knowledge, medical evidence, and who pays for it

See also above Seeking OSCE adjustments: Knowledge.

Knowledge: Basic rules

A qualifications body has a defence to a reasonable adjustments claim (above) and to discrimination arising from disability under s.15 (below) if it did not know and could not reasonably be expected to know that the person has a disability (EqA Sch 8 para 20 on reasonable adjustments, and EqA s.15(2)). What matters is whether the qualifications body had actual or constructive knowledge of the facts of the disability (Knowledge of disability>Knowledge of facts of the disability, rather than law), ie facts about the stammer or other impairment which make it a “disability” within the EqA. It does not matter whether the body knows that those facts mean it is legally a disability within the EqA.

A qualifications body also has a defence to a reasonable adjustments claim if it did not know and could not reasonably be expected to know that the person is likely to be placed at the substantial disadvantage (EqA Sch 8 para 20). “Substantial” means only “more than minor or trivial” (s.212(1) EqA). As regards telling the exam body of the disadvantage, see above Seeking OSCE adjustments: Knowledge.

However on a claim under s.15 EqA, the qualifications body can be liable even without knowing of the causal link between the disability (eg the stammer) and the reason for the unfavourable treatment (eg the reason it marked the person down): see Knowledge of causal link with disability under s.15 EqA.

For much more discussion of this, see Knowledge of disability. A couple of points in brief:

• Knowledge on the part of any member of the qualification body’s staff – in that capacity – should usually be enough.
• What the body did not know but could reasonably be expected to know – if it had taken reasonable steps to make enquiries – is generally called “constructive knowledge”. This duty to take reasonable steps to find out is also described in the 2008 Code (below) on qualifications bodies.

(There is an argument that the impairment having a more than minor or trivial just in the professional exam is enough for the stammer to be a disability, on the basis that the exam is itself a normal day-to-day activity in the context of an employment claim. See particularly the Paterson case in Normal day-to-day activities>”Day-to-day” activities. But obviously it’s best not to rely just on that.)

Knowledge: Indirect discrimination (s.19)

Whether and how far knowledge of the disability and of any disadvantage is relevant to indirect discrimination (above) is not clear. This type of claim has no express defence for lack of knowledge: see Knowledge of disability>Indirect discrimination – is knowledge required? It can also be argued that the qualifications body should have reviewed its competence standards in advance as set out in the (old) 2008 Code, above, and that knowledge should not matter since the scheme of the legislation is not for competence standards to be adjusted in response to a particular individual’s needs, but rather that they should apply in the same way to everyone and be justified.

Can a qualifications body insist on medical evidence?

In other words, can a qualifications body say it has neither actual nor constructive knowledge of the disability and disadvantage unless it has medical evidence?

This will depend on the facts, but in practice it is a good idea to co-operate with any investigation of the disability by the qualifications body. See on employers (but the underlying rules are the same) Employer requiring medical evidence for reasonable adjustment?

Does the individual have to pay for medical evidence?

I understand some qualifications bodies insist that the individual has to bear any costs of obtaining medical evidence it requires, such as a report from a speech and language therapist. It is doubtful that qualification bodies are entitled to do this, for two reasons.

Firstly s.20(7) EqA makes clear that the person required to make a reasonable adjustment is not entitled to require the disabled person to pay any of the costs of complying with the duty. It might be argued this means a disabled exam candidate need not pay the costs of medical evidence, such as a report from a speech and language therapist, if the qualifications body insists on one as condition of making the adjustment. However that is not clear. A qualifications body might try to argue that medical evidence is just part of establishing whether or not it has to comply with the duty.

In any event, as regards both reasonable adjustment claims and s.15 claims, a qualifications body is treated as having “constructive knowledge” of anything it would have found out had it done all it can reasonably be expected to do to find out whether the person has a disability and (for reasonable adjustments) would likely be at a disadvantage: Knowledge of disability>Constructive knowledge. Can a qualifications body be reasonably expected to pay any costs of medical evidence it asks for? I suggest a court is likely to say yes, at least in most cases. Otherwise the exam candidate effectively has to pay to get reasonable adjustments etc to put them on an equal footing with others. If it is right that the body can reasonably be expected to meet costs, it seems a body has “constructive knowledge” of what it would have discovered had it paid for a medical report which it requires. Ultimately it would be for the employment tribunal (or other tribunal) to decide what steps – including payment – a qualifications body can reasonably be expected to take to find out about the disability and any disadvantage. (I can see there might be circumstances where the body has already made all reasonable enquiries and cannot reasonably be expected to incur further costs.)

The legal rules for qualification bodies here are the same as for employers. I’m not aware of any court decision where it was seen as legitimate for an employer to require staff to meet costs of obtaining medical evidence. For example, employers pay for any opinion from Occupational Health as to whether the person has a disability. Theoretically it might be argued that the different circumstances of qualifications bodies versus employers make it reasonable for the individual to meet the costs in the first case but not the latter. I don’t really see why though. These are costs specifically relating to the qualifications body’s functions (cf para 36-37 of the EAT decision in Project Management Institute v Latif).

Also note that in deciding what adjustments are “reasonable” (technically different from what the body could reasonably be expected to know) ignorance through failure to carry out a proper assessment is not an excuse. Although failure to carry out an assessment is not in itself illegal, in Project Management Institute v Latif>Failure to carry out assessment (a case specifically on a professional exam) the Employment Appeal Tribunal said that a respondent, be it an employer or qualifications body, cannot rely on failure to carry out a proper assessment as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified. There was of course no suggestion that the claimant must pay for the assessment. See further Reasonable adjustment rules: employment>Assessment consultation and trials.

See too on university exams Universities: Knowledge of disability>Cost of medical evidence, though the underlying legal rules there are somewhat different. There the Equality Act does not mention knowledge, and the reasonable adjustment duty is “anticipatory”.

Knowledge: 2008 Code of Practice

The 2008 Code says among other things, as regards the reasonable adjustment duty:

• A qualifications body must do all it can reasonably be expected to do to find out whether the person has a disability and is likely to be placed at a substantial disadvantage (para 5.11). There is no later (Equality Act) Code on qualifications bodies, but for the identical statutory provision (EqA Sch 8 para 20) as it applies to employers paras 5.15 and 6.19 of the EqA Employment Code still say this: see Knowledge of disability>Constructive knowledge.
• “Where information is available which should alert a qualifications body to the [disability or substantial disadvantage], or would be (sic) if it were reasonably alert, the body cannot simply ignore it. It is thus a good idea for disabled people, if they wish to take full advantage of the [reasonable adjustment provisions], to let educational institutions and qualifications bodies know of their disability and of substantial disadvantages that are likely to arise. The earlier a qualifications body is told about a disability and its effects, the more likely it is to be able to make effective adjustments.” (para 8.22)

Competence standards: uncertainties

Normally students will just ask for reasonable adjustments (eg above Seeking OSCE adjustments).

Legally these have the limitation that the reasonable adjustment duty does not apply to competence standards (above Reasonable adjustments: process for assessing competence standards). Competence standards can still be challenged, under s.19 EqA (indirect discrimination, below) in the case of qualifications bodies. However there is very little case law on competence standards, and I think there are a lot of uncertainties. These include:

Uncertainties: What is a competence standard?

What is a competence standard? This is discussed somewhat below: What is a competence standard and Time limits in professional exams. There is a statutory definition but it has been very little discussed by the courts, and what professional bodies and universities see as competence standards may not always match the courts’ view.

Uncertainties: How far is competence standard focused on workplace situation?

Let’s say it’s justified to have a competence standard that a student doctor must be able to conduct a medical consultation to a certain level within x minutes. Let’s say they can do that fine in the workplace, but they stammer more and so take longer in the exam (with examiners present etc). Can reasonable adjustments including extra time being given in the exam situation, on the basis that the competence standard is – or should be – the ability to do this in a workplace setting, and the adjustments are required to compensate for the disadvantage of being in the exam?

If the competence standard were to be able to do it generally, including in the exam setting, presumably the reasonable adjustment would not be legally allowable. But if the courts are willing to accept in this type of case that the setting can be part of the competence standard, a competence standard going beyond abilities in the workplace setting may be harder to justify under s.19 EqA (indirect discrimination).

Uncertainties: Is reasonable adjustment duty excluded by an unlawful competence standard?

Is the reasonable adjustment excluded by a competence standard which is unlawful indirect discrimination under s.19 EqA, because it is not sufficiently justified? This is unclear. See Is reasonable adjustment duty excluded by an unlawful competence standard?

Uncertainties: What are the rules on competence standards applied by a university but set by a professional body?

There is some discussion of this above at Discriminatory competence standards if both university and professional exam body involved.

Indirect discrimination: What competence standards can be applied

Under s.53(7) EqA the only basis on which the application of a particular competence standard (below) can be challenged is indirect discrimination under s.19 EqA: separate page Indirect discrimination. Broadly there is indirect discrimination if:

• the qualifications body applies a provision, criterion or practice (PCP), for example a competence standard, 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, and
• the body cannot show that the standard is a proportionate means of achieving a legitimate aim (this is known as the “objective justification” defence: below Indirect discrimination: Objective justification).

The reasonable adjustment duty (above) does not apply as regards what competence standards can be assessed. The idea is that it is highly desirable for qualifications bodies to be able to apply one professional standard to all applicants, rather than being obliged to adjust the standard on a case-by-case basis. But if the standard disadvantages disabled people, it must meet the objective justification test.

Indirect discrimination: Objective justification

So as regards what competence standard can be applied, the most important question is likely to be whether the body can show it meets the “objective justification” test. It must show the standard is a proportionate means of achieving a legitimate aim. I give more detail on this test generally on my Objective justification page, and discuss itas regards indirect discrimination on Group test for objective justification of indirect discrimination? The tribunal conducts a balancing excercise. It will be particularly important whether the aim can be achieved by alternative less discriminatory means. There is also the question of whether the detriment to people with that type of disability outweighs the importance of the aim to be achieved.

I set out above some specific arguments on stammering in professional exams: Arguments on what is reasonable and/or justified. The present section looks at the test more generally

The 2008 Code of Practice discusses the objective justification test specifically in relation to competence standards at paras 8.36 – 8.41. Para 8.36 gives the example of a disabled person who fails a fitness test, but the qualifications body had not reviewed the fitness standards to see if they were proportionate to the requirements of the job. If it had done so, it would have found that the fitness standard demanded was much higher than many people actually working in that job could now achieve (even though these people achieved that standard at the time of qualification). The qualifications body would therefore be unlikely to be able to justify this competence standard.

Para 8.39 of the Code talks about health (medical) standards. It says stereotypical assumptions about health and safety implications should be avoided. A qualifications body would have to provide cogent evidence that the medical standard is genuinely fundamental to the needs of the profession or trade in order to ensure the competence of practitioners.

Para 8.41 considers how a qualifications body can avoid discrimination in relation to competence standards. The paragraph advises that it is more likely to be possible to justify competence standards if their nature and effect has been considered in advance. It is advisable for a qualifications body to review and evaluate competence standards, which might involve:

• “identifying the specific purpose of each competence standard which is applied, and examining the manner in which the standard achieves that purpose
• considering the impact which each competence standard may have on disabled people and, in the case of a standard which may have an adverse impact, asking whether the application of the standard is absolutely necessary
• reviewing the purpose and effect of each competence standard in the light of changing circumstances – such as developments in technology
• examining whether the purpose for which any competence standard is applied could be achieved in a way which does not have an adverse impact on disabled people, and
• documenting the manner in which these issues have been addressed, the conclusions which have been arrived at, and the reasons for those conclusions.”

Discrimination arising from disability (s.15)

Like for reasonable adjustment claims, applying a particular competence standard (below) is not a breach of s.15 EqA (s.53(7) EqA).

Subject to that exception, whenever a student is marked down or otherwise treated unfavourably for something which resulted from their stammer – for example dysfluency, hesitating, taking longer, saying less, circumlocuting or whatever – s.15 EqA is potentially relevant. Provided the qualifications body knows (above) or could reasonably be expected to know (above) of the disability, the body is liable under s.15 EqA unless it can show the unfavourable treatment is justified as being a proportionate means of achieving a legitimate aim.

Example: A medical student is marked down in an OSCE exam for not completing the assessment of a mock patient in the designated time. The student’s failure to complete it was due to his stammer. Provided the exam body knew or could reasonably have been expected to know of the disability, this should be a breach of s.15 EqA unless (a) the exam body can show that marking the person down was sufficiently justified, or (b) the time limit was a “competence standard” or perhaps marking him down was necessitated by a competence standard.

Note: Whether s.15 is excluded here because the unfavourable treatment (marking the person down) amounts to the application of a competence standard would be a tricky question for the tribunal to decide (below Technical note: Time limits). The important point though is that even if it is a competence standard so s.15 does not apply, the student could claim indirect discrimination under s.19 (above) unless the exam body shows the competence standard is justified.

S.15 is discussed further, in the context of university exams, at Oral assessments at university: the rules>Discrimination arising from disability (s.15). The exclusion of competence standards from s.15 is not discussed there, however, because the exclusion does not apply to a university’s own exams.

On the knowledge defence, see above Knowledge, medical evidence, and who pays for it.

Other EqA claims

The other types of claim in the Equality Act can also apply to qualifications bodies, again assuming the issue is not whether a particular competence standard can be applied (s.53(7) EqA). The possible types of claim are basically the same as those against employers, namely:

• Direct discrimination, eg this may be relevant if less favourable treatment is based on generalised or stereotypical assumptions about the disability or its effects. There is no “objective justification” defence for this. See Direct discrimination, and paras 4.4 to 4.21 of the 2008 Code.
• Harrassment – see the example below.
• Victimisation where a qualifications body penalises somone for making or being involved in a discrimination claim (against the qualifications body or anyone else).

An example of harassment:

An assessor from a motor mechanics qualifications body is judging a number of practical tasks performed in the workplace by a trainee motor mechanic who has a speech impairment. The assessor imitates the mechanic’s manner of speech and makes offensive remarks about him to the trainee’s line manager. This is harassment, whether or not the disabled man was present when the comments were made, because they were made with the intention of humiliating him.
Para 4.37 of the 2008 Code of Practice

Disputes

Unless resolved through a body’s internal procedures, disputes against qualifications bodies can normally be taken to an Employment Tribunal (subject to a time limit), because s.53 is in Part 5 EqA (“Work”). ACAS can get involved to conciliate, and indeed must be approached before a tribunal claim is submitted.

However the Employment Tribunal does not have jurisdiction under s.53 for qualifications bodies where a statutory appeal is available (EqA s.120(7)), such as some types of complaint against the General Medical Council. More precisely, this exclusion applies “in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal.” But the possibility claiming for judicial review does not bar a claim to the Employment Tribunal:

Michalak v General Medical Council (bailiii.org), Supreme Court, 2017. Press summary (supremecourt.uk pdf)
The claimant was a doctor. The GMC had begun fitness to practise proceedings against her under Part V of the Medical Act 1983. She claimed that the GMC discriminated against her in the way in which it pursued these proceedings. She also alleged that the discrimination extended to the GMC’s failure to investigate complaints she had made against other doctors employed by her employer. An employment tribunal decided it had jurisdiction to consider her Equality Act claims regarding sex, race and disability discrimination from a certain date.

The Supreme Court held the employment tribunal did indeed have jurisdiction to to consider her claims. The Medical Act provided for an appeal to be made to the High Court in certain situations, such as an appeal against a decision of the GMC to erase a medical practitioner’s name from the register. However none of these possible statutory avenues of appeal was relevant to the claimant’s position (paragraphs 11-12 of Supreme Court decision). The GMC argued that even so EqA s.120(7) excluded the employment tribunal as she could have sought judicial review of the GMC decisions which she claimed were unlawful discrimination.

The Supreme Court held that judical review is not a statutory appeal within EqA s.120(7), so the employment tribunal had jurisdiction here. Judicial review was not in the nature of an appeal. Also s.31 Senior Courts Act 1981 (which the GMC argued was the relevant “enactment”) did not establish judicial review as a procedure, but rather regulated it.

A related case presumably involving the same claimant is Michalak v The Mid Yorkshire Hospitals NHS Trust and others.

Code of Practice

There is no Code of Practice for ss.53-54 EqA rules on qualifications bodies. However, there is a 2008 Code of Practice issued under the Disability Discrimination Act 1995 (DDA): Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (dera.ioe.ac.uk). I call this the “2008 Code”. It is possible that tribunals are still obliged to have regard to this Code, but even if they do it is not binding.

Some parts of the 2008 Code are out-of-date because the Equality Act has some differences from the DDA. However, an area which has not changed is that the reasonable adjustment duty does not apply to a competence standard. Also, although the DDA had no concept of “indirect discrimination”, the objective justification test which a competence standard had to meet (proportionate means of achieving a legitimate aim) was the same then as it is now (s.14A(3) DDA).

Technical note: Time limits in professional exams

(On time limits in university exams (within Part 6 EqA), see Oral assessments at university: the rules>Competence standards: Time limits.)

Time limits: Reasonable adjustments

If a student asks for an extension of time in a professional oral exam, the qualifications body may sometimes argue that the time limit is itself a competence standard (below), and so not subject to the reasonable adjustment duty. (However time limits have sometimes been extended in medical OSCE exams – discussed above in the Compensating for increased effects of stammer in exam compared with workplace – so examining bodies may not necessarily be arguing those time limits are competence standards.)

Is time limit a competence standard?

Para 8.28 (below) of the 2008 Code (which is not necessarily right) gives “ability to carry out a particular task or activity within a set period of time” as something which would “probably” be a competence standard. Para 8.20 (below) of the Code gives a shorthand exam as an example of this.

The appeal courts have yet to clarify in what circumstances a time limit is a competence standard. The Court of Appeal unfortunately skirted the issue in Burke v College of Law, 2012. However, a judge there indicated that although ability to work under a time constraint was a competence for a solicitor, it did not necessarily follow that sitting the exams under that particular time constraint was a competence standard. This point was made by Lewison LJ in giving leave to appeal to the Court of Appeal. The case helps in arguing that a particular time limit imposed in the exam may not itself be a competence standard, even though there may indeed be time pressure in the “real life” work situation.

How far is competence standard focused on workplace situation?

Even if a time limit is a competence standard, should the focus be specifically on whether it can be done in the workplace? See above Uncertainties: How far is competence standard focused on workplace situation?

What is reasonable?

Some arguments as to what time limit is reasonable are discussed above: Arguments on what is reasonable and/or justified.

Time limits and indirect discrimination: Is the competence standard justified?

Even if the reasonable adjustment duty does not apply (because the time limit is a competence standard), if the time limit puts disabled people at a particular disadvantage, such as in the OSCE, it must be justified as a proportionate means of achieving a legitimate aim: above Indirect discrimination: Objective justification.

It is for the qualifications body to show that the standard is justified. It will be important whether the aim can be achieved by less discriminatory means, and whether the detriment to disabled people outweighs the importance of the aim to be achieved. There is a balancing exercise by the tribunal.

Some arguments as to what is justified are discussed above: Arguments on what is reasonable and/or justified.

Time limits: Discrimination arising from disability (s.15 EqA)

S.15 might also apply if the time limit is not required by a competence standard: see example above.

Technical note: What is a “competence standard”?

Importance of what is a competence standard

S.53(7) EqA says the application by a qualifications body of a competence standard is not disability discrimination unless it is indirect discrimination. Also, as regards reasonable adjustments, EqA Sch 8 para 15(2) says a provision, criterion or practice (PCP) does not include the application of a competence standard. The effect of Sch 8 para 15(2) is that there is no right to reasonable adjustments if the application of a competence standard puts a disabled person at a disadvantage.

In other words, as explained by the 2008 Code (eg para 8.27 to 8.34), the duty to make reasonable adjustments (above) – and other types of EqA claim – can apply to the process of assessing the competence standard, but do not apply to the application of the competence standard, ie what standard should be applied. The latter question is subject to review only as indirect discrimination (above), where the qualifications body has a defence if it shows the competence standard is a proportionate means of achieving a legitimate aim. The idea is that competence standards should be consistent standards that do not have to be adjusted for individual circumstances, but also they must not be unjustifiably discriminatory.

Definition of ‘”competence standard”

A competence standard is defined in the Equality Act as:

“an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”
s.54(6) EqA

The 2008 Code (which is not binding, even if still in force) explains that, for example, having a certain standard of eyesight is a competence standard required for a pilot’s qualification – presumably a “medical” standard. Having a certain level of knowledge of the UK taxation system is a competence standard for an accountancy qualification (para 8.27 of the Code). The Code goes on to say:

A requirement that a person has a particular level of knowledge of a subject, for example, or has the strength or ability to carry out a particular task or activity within a set period of time, would probably be a competence standard.
Para 8.28, 2008 Code. On time limits, see above Time limits in professional exams.

The standard must relate to a level of “competence or ability”. Accordingly the Code (at para 8.29) says a condition that a person has, for example, a certain length of experience of doing something will not be a competence standard if it does not determine a particular level of competence or ability. So a requirement that a candidate must have at least ten years continuous experience is unlikely to amount to a competence standard. A person who has two periods of experience which total ten years may have equivalent ability and experience.

Situations where the assessment process is bound up with the competence standard

The 2008 Code says:

8.31 Sometimes, of course, the process of assessing whether a competence standard has been achieved is inextricably linked to the standard itself. The conferment of some qualifications is conditional upon having a practical skill or ability which must be demonstrated by completing a practical test. The ability to take the test may itself amount to a competence standard.

Para 8.31 of the 2008 Code goes on to give some examples, including:

An oral examination for a person training to be a Russian interpreter cannot be done in an alternative way, e.g. as a written examination, because the examination is to ascertain whether someone can speak Russian.

A driving test for a heavy goods vehicle licence cannot be done solely as a written test because the purpose of the test is to ascertain whether someone can actually drive a heavy goods vehicle.

The 2008 Code has some further examples at para 8.20 which deals with the reasonable adjustment duty. These include one example where an adjustment to an exam for interpreters would (in contrast to the above example) be reasonable:

A woman with a mental health problem is informed that an oral examination for a diploma in interpreting and translation has been arranged for 8:30 am. The timing of the examination would substantially disadvantage the woman, because a side effect of her medication is extreme drowsiness for several hours after taking her morning dose – which prevents her from concentrating well. The qualifications body agrees to her request to take the examination later in the day.

A woman with a learning disability is allowed extra time by a qualifications body to take a written examination. This is likely to be a reasonable adjustment for the qualifications body to make, because the trade which the woman wants to enter would not require written work to be done in a short amount of time, so the ability to write quickly is not a competence standard.

A disabled man asks for twice as much time for a test in shorthand because his disability makes it impossible for him to write quickly. This is unlikely to be a reasonable adjustment for the qualifications body to make, because speed is an essential element of the shorthand qualification – in other words, it is likely to be a competence standard, and thus the duty to make reasonable adjustments does not apply.

For discussion of time limits, see above Time limits in professional exams.

Technical note: EU law?

There is no particular exception for “competence standards” in the EU Framework Employment Directive, which probably covers professional exams. This may perhaps be helpful to claimants even after Brexit. However that would need to be thought through, and I don’t consider it further here.