Professional exam bodies

Sections 53 and 54 Equality Act 2010 (EqA) 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.

Summary

• This page focuses particularly on professional exam bodies in relation to OSCE medical exams. However, 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.
• STAMMA and the NHS Stammering Network have produced a Job-based oral exam guide, mainly for OSCE exams in the health sector. Anyone seeking, or supporting a request for, adjustments to these scenario-based professional exams, in respect of stammering, should look at this: below Guide by STAMMA and NHS Stammering Network. Also there is the STAMMA helpline for support.
• As to the EqA position, 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, and provided the adjustments are consistent with the competence standards being assessed. So adjustments cannot alter what competence standards are assessed. But there are significant uncertainties (below).
• Competence standards themselves, although not subject to the reasonable adjustment duty, can still be challenged under the EqA, by way of indirect discrimination. If a competence standard disadvantages people with a particular disability, the qualifications body can be liable for indirect discrimination unless the body shows that 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.
• Ss.53-54 on qualifications bodies are within EqA Part 5 (work), so claims under them go to an employment tribunal, unlike claims under Part 6 (education) against universities.

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 that there is often uncertainty about how far – on a particular set of facts – the right to reasonable adjustments is limited by competence standards (discussed on my Competence standards 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 and 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.

Note: Ss.53 & 54 are within Part 5 (work), ie the EqA employment provisions. Universities are within EqA Part 6 (education).

Seeking OSCE adjustments

The STAMMA helpline and STAMMA’s ‘Job-based oral exam guide’, below may well be helpful in obtaining these.

OSCE exams

This page focuses particularly on medical OSCE exams (wikipedia.org), eg for doctors, nurses and dentists, 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.

Part 1 is aimed at people who stammer. Part 2 is a guide for speech and language therapists and other professionals producing a report in support of a request for adjustments. Part 2 includes sample letters/reports plus a template for these, and sample ‘Information for examiners’.

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. I discuss below Arguments on what is reasonable and/or justified, but 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 that 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).)
• Receiving a list of stations and their order in advance, for example half an hour before each session – if (for the particular individual) this would reduce the effects of the stammer, through greater predictability reducing anxiety and nervousness.
• Breaks to recover from the effort of stammering, and from any extra-long sessions
• 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 US 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 examiners mistaking effects of the stammer as the person being unsure, or less competent, and also giving examiners and actors guidance on how to listen/respond. 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 (see quote from the STAMMA guide quoted below, and also 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.
• Allowing substitution of particular terminology which is difficult to say.

‘Prior to the exam, examiners and actors should be given information about stammering in general, the individual candidate’s particular pattern of stammering, and advice on how listeners can helpfully respond’

Example of adjustment previously requested, in STAMMA Job-based oral exam guide, above, in both parts 1 and 2. Part 2 of the guide includes examples of ‘Information for examiners’, combining general with individual-specific information.

‘Acceptance that candidate may substitute some specific terminology if those words are particularly difficult to say
Example of adjustment previously requested, in STAMMA Job-based oral exam guide, above, part 2

A broader possible adjustment, which may be more controversial, is examiners not marking the candidate down for consequences of the stammer, as described in the information given to the examiners. Exam bodies may potentially argue that 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

Any ways in which OSCEs do not replicate the workplace may justify further adjustments. For example if the examinee is expected to explain to the examiner what they are doing (which would not happen in the workplace), adjustments might include:

• giving additional time
• if the person would normally be expected to give a running commentary to the examiner, but that significantly slows things down, allowing them to give a summary at the end instead, with extra time for doing this.

4. Online chat

‘Opportunity to use the chat function during online examinations’
Example of adjustment previously requested, in STAMMA Job-based oral exam guide, above, part 2

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.

‘Outlining the specific adjustments you would like and the reasons for them is a great way to initiate the conversation. Even if you can’t think of a specific adjustment for the way the exam procedures put you at a disadvantage, tell the examining body about it. That way, they can consider what steps they can reasonably take.’
STAMMA Job-based oral exam guide, above, part 1. There is a similar comment in part 2.

Seeking OSCE adjustments: Professional letter or report

Exam bodies will normally expect candidates to back up their request for adjustments with a letter or report from an appropriate professional, such as a speech and language therapist.

Part 2 of the STAMMA Job-based oral exam guide, above is a guide for professionals on supporting a request for reasonable adjustments. It includes sample letters/reports., and a template. It makes clear that the details should always be tailored to the individual, and ideally to the specific exam procedures.

See also 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?

The STAMMA Job-based oral exam guide, above implies that if a candidate cannot get a report through the NHS or funded by their university or employer, they would need to cover the cost themself.

Seeking OSCE adjustments: Competence standards

Technically the reasonable adjustment duty does not apply to what competence standards can be assessed (below Reasonable adjustments: process for assessing competence standards). The idea is that 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 within s.53 EqA (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 etc 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, requires knowledge only of the disability.)

It is prudent for the candidate to ensure the examining body is told – for example in the professional report (above) – of ways in which the exam puts them at a disadvantage compared with non-disabled people, at least if 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 certain words difficult to say
• exhaustion from the effort of stammering,
• the stammer’s effects being mistaken as uncertainty etc.

Disadvantage compared with non-stammerers, versus disadvantage compared with own performance in workplace

Briefly, it may perhaps be easiest to focus on disadvantages in terms of finding it more difficult than non-disabled people to demonstrate in an exam setting what one’s competence will be in the actual workplace – so excluding difficulties that would also be faced in the workplace (unless perhaps a workplace adjustment would be reasonable).

The provision, criterion or practice (PCP) applied by the examining body must put the disabled person at a ‘substantial disadvantage’ in comparison with non-disabled people (Reasonable adjustment rules: employment>Substantial disadvantage). This is the disadvantage of which the examining body needs to have actual or constructive knowledge. So any report etc should set these disadvantages out.

However, if different, it is also likely to be relevant how the exam disadvantages the person compared with how they would be in the actual workplace (arguably after reasonable adjustments in the workplace). Adjustments for these disadvantages are more likely to be reasonable, and more likely to be consistent with competence standards being assessed. So the report etc should point out how the exam is different from ‘real life, and how it is likely to disadvantage the person compared with the actual work situation. (Any difficulties in the workplace will likely be lesser versions of difficulties in the exam.)

It may be possible to effectively combine these disadvantages in any letter or report, as the drafts at part 2 of the STAMMA Job-based oral exam guide, above seem to do.

Example: Taking longer to speak in the exam could be a substantial disadvantage compared with non-disabled people, within the EqA. However, an examining body might seek to argue that it is only reasonable to make adjustments to alleviate that disadvantage so far as there is likely to be greater stammering in the exam situation than in the actual work situation (above Compensating for increased effects of stammer in exam compared with workplace).

It may be possible to simplify the argument for an adjustment by seeing the (single) disadvantage in terms of finding it more difficult than non-disabled people to demonstrate in an exam setting what one’s competence will be in the actual workplace.

On a related technical point, 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, it seems that the body does not strictly need knowledge that eg effects of the stammer are greater in the exam than 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. However, not knowing this makes it less likely the exam body will agree the adjustment, and if the case does get to a tribunal the lack of disclosure may well make the tribunal less sympathetic. So, in practice, it makes sense to tell the exam body!

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 qualifications 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 is therefore be worth letting the body know of any disadvantage even without being able to suggest a specific adjustment to alleviate it – to put the body on notice legally, and it may be able to propose an adjustment.

‘Outlining the specific adjustments you would like and the reasons for them is a great way to initiate the conversation. Even if you can’t think of a specific adjustment for the way the exam procedures put you at a disadvantage, tell the examining body about it. That way, they can consider what steps they can reasonably take.’
STAMMA Job-based oral exam guide, above

Seeking OSCE adjustments: Applying for adjustments well in advance

It makes sense to apply for any adjustments as early as possible.

That is partly because practicability is an important relevant factor in deciding what adjustments are ‘reasonable’ (Reasonable adjustment rules: employment>Reasonableness). For example, some adjustments requiring extra time, or even additional days, may require substantial advance notice as they may require arrangements for both personnel and physical space to be available for longer.

Also, if the examining body initially refuses some or all of the request, you want sufficient time for negotiation and discussion.

Arguments on what is reasonable and/or justified

I suggest the following may be some relevant arguments as to

1. whether an adjustment is ‘reasonable’ (below), or unfavourable treatment is justified within s.15 EqA (below) as a proportionate means of achieving a legitimate aim and
2. whether a competence standard is justified within s.19 EqA 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. However, under s.19, the focus is not on the disadvantage to the particular claimant, but whether it is justified to apply the competence standard to people generally, given its impact on disabled people

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, due to increased anxiety for example. As regards seeking reasonable adjustments, this should be set out in the professional report. Also if the person has done work placements, they may be able to present evidence of speech not being a significant issue there, and not getting in the way of doing the job.

For a similar point on job interviews see Oral interview not appropriate way to assess oral skills. This was exemplified in the American Ohio firefighter case, where a firefighter was rejected because he stammered in the interview. That was held illegal because his stammer did not interfere in the different situation of dealing with a fire.

The individual’s particular circumstances will be less relevant when deciding in an indirect discrimination claim whether competence standards are ‘justified’ (though see Justification defence for indirect discrimination is easier than for other disability claims>Relevance of individual facts even if “group” approach taken). However, 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, and whether stammer should just a matter between employer and employee?

Is it justified to insist that the professional must have all the oral abilities being tested, given the different types of job available? In the case of doctors, for example, are there some types of doctor for which those OSCE abilities within particular time constraints are not required? In a US 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.

The flipside of this is that arguably it may be proportionate (ie minimise the detriment to disabled people while still enabling the legitimate aims to be met) to see some of the oral abilities being tested as a matter between employer and employee, rather than as a requirement that is tested in professional exams. The employer can take into account what oral communication skills are required in the particular job (eg very different in pathology), and the employer’s duty to make reasonable adjustments.

Arguments: Relevance of adjustments in workplace

It can be argued that any adjustments that should reasonably be allowed in the workplace should be allowed in the exam. This is because 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 the reasonableness of adjustments are dependent on the particular workplace, that might 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: above Different types of job… .

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 8.6 of the 2008 Code of Practice, below, 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 EU Court of Justice 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

Apart universities and FE (below) to which different rules apply, bodies conducting professional and trade exams are subject to the EqA under ss.53 and 54. Key points are:

• 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 (until it is extended to 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. The idea is that there should be a single set of standards for everyone.
  • However the qualifications body is obliged to make reasonable adjustments to the process by which it assesses the competence standards. For example, there could be adjustments to whether assessment is oral or written, unless the competence standard itself relates to eg oral skills.
  • Unlike a university’s duty to students, the adjustment 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 by way of a claim for indirect discrimination under s.19 EqA.
  • This means that if the competence standard puts disabled people at a particular disadvantage, the qualifications body can be required to show that the standard 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, though, the law around competence standards remains unclear: 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, a time limit it can still challenged by way of indirect discrimination, so that the qualifications body must show the time limit is objectively justified (above). 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 that it requires: below Knowledge, medical evidence, and who pays for it>Does the individual have to pay for medical evidence?
• As to where the rules in ss.53 and 54 EqA apply:
  • Examples of bodies bound by these rules include the General Medical Council (doctors), Transport for London and local authorities (licences for taxis and private hire drivers) and the Gas Safe Register (gas engineers).
  • Universities and FE colleges are subject to their own (wider) rules, within EqA Part 6 on education.
  • This page focuses on exams, but ss.53-54 can apply well beyond that, for example where membership of an association facilitates engagement in a particular profession, drug tests, and perhaps 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 conferment of) a ‘relevant qualification’. This is defined as 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 EqA. 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 (licences for taxis and private hire drivers)
• the Solicitors Regulatory Authority (Nwabueze v University of Law)
• the Gas Safe Register (gas engineers)
• Network Rail, in relation to the grant of a Sentinel card, allowing a person to do safety-critical work in the rail industry (Truman v SPL Powerlines UK, below)
• perhaps, a police authority deciding whether an officer had completed their probationary period (Hart v Chief Constable of Derbyshire below).

There need not be an exam; for example Truman, below concerned a drugs test. Also the qualification, authorisation or enrolment etc may only facilitate engagement in a particular trade or profession, rather than being required. 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’.

Cases on what is a ‘qualifications body’

Often it is clear that an organisation is a qualifications body. However, where this is disputed, some court cases (including those below) have clarified the boundaries. Briefly:

• The qualification etc should be ‘outward facing’ or otherwise ‘vouching’ to the public the claimant’s competence or status for the job: see particularly Truman, Pemberton, and Watt below.
• ‘Trade or profession’ is defined to include ‘vocation or occupation’, and is very wide: see Truman, below.

Truman v SPL Powerlines UK, [2026] EAT 54
The claimant was applying for a job with Powerlines, an independent overhead line electrification provider. The job was classed as safety-critical. To do this type of safety-critical work in the rail industry, a person requires a Sentinel card from Network Rail. The latter cancelled his Sentinel card (and banned him for five years) because he tested positive for cannabis in a drugs test. However, he had been prescribed medical cannabis to manage pain from his disability. The employment tribunal held that under Network Rail’s own policy, he should have passed the drugs test and retained his card.

The EAT held that Network Rail was a qualifications body within ss.53-54 EqA. As such it was potentially liable for failure to make reasonable adjustments, but a tribunal would need to reconsider this.

Firstly, the EAT rejected Network’s Rail’s argument that the role for which the claimant had applied was not a ‘trade or profession’ within the s.54 definition. Under s.212 EqA, ‘profession’ includes a ‘vocation or occupation’. The EAT said that Network RaiI’s argument ‘sought unduly to confine the range of professions, vocations, trades or occupations to those which can be described in a long-established and/or simple formulation, eg, “solicitor” or “plumber”‘. That was contrary to the broad statutory language, and to the sheer range of different forms of employment (and of their descriptions) in the modern world. The claimant had applied for a job as a POS/AP Lift Planner, which was a safety-critical role in the rail maintenance sector. Whatever its precise description, that was at the very least a trade or occupation.

Secondly, the EAT rejected Network Rail’s argument, based on previous case law (below), that the grant of the Sentinel card was not ‘outward facing’ or otherwise ‘vouching’ to the public the claimant’s competence for the job. The EAT said that the critical distinction was between assessments and decisions made (i) for the benefit of the decision-maker alone (such as the health insurer in Tattari below) and (ii) for the benefit of the public, either directly or via third parties. Any person employed in a safety-critical role in the rail maintenance sector had an ‘outward facing’ role to the public. In granting a Sentinel card to an actual or prospective employee of a third party employer in the sector, Network Rail was not (at least, primarily) acting for its own benefit. Rather, it was vouching to the public – via the actual/prospective employer – that the person in question met the relevant standard of competence and/or had an appropriate status.

Pemberton v Inwood (bailii.org), [2018] EWCA Civ 564, Court of Appeal
A bishop was held to be a qualifications body in respect of his refusal to grant an ‘Extra Parochial Ministry Licence’ to a canon, because of the canon’s same-sex marriage. This EPML was a necessary requirement for him to be appointed by an NHS Trust as ‘chaplaincy and bereavement manager’ in a hospital within the diocese.

The Court of Appeal said at §45: ‘… the bishop on behalf of the Church of England was not simply applying a standard for his and its own purposes. Granting an EPML signifies to the NHS Trust in this case and through the Trust to the public that the individual meets a particular standard and has an appropriate status…. In granting an EPML, a bishop is vouching that a priest has the requisite status within the Church of England for the purpose of the outward facing role which the employment in question entails.’

Note: However, the bishop could rely on the exception in EqA Sch 9 para 2, on requirements applied to comply with religious doctrines.

Watt (formerly Carter) v Ahsan, [2007] UKHL 51, House of Lords
The House of Lords rejected a claim that the Labour Party was a qualifications body in relation to its selection of a candidate for a local election.

The House of Lords said: ‘The notion of an “authorisation or qualification” suggests some kind of objective standard which the qualifying body applies, an even-handed, not to say “transparent”, test which people may pass or fail. The qualifying body vouches to the public for the qualifications of the candidate and the public rely upon the qualification in offering him employment or professional engagements.’

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.

Legal Services Commission v Patterson (bailii.org) [2003] EWCA Civ 1558, Court of Appeal
The Commission was a ‘qualifying body’ within s.12 Race Relations Act 1976, in deciding whether to award a legal aid franchise to a solicitor.

Kelly v. Northern Ireland Housing Executive (bailii.org) [1998] UKHL 33
Two solicitors in Northern Ireland claimed against the Housing Executive for religious discrimination, for not appointing them to its panel of solicitors. The Executive used panel solicitors to defend public liability claims against it. The court held that the Executive was not conferring a ‘qualification’ within a similar provision in Northern Irish law.

Tattari v Private Patients Plan, [1998] ICR 106, Court of Appeal (summarised in Truman v SPL Powerlines UK at §67).
The claimant was a doctor. She complained that a health insurer racially discriminated against her by refusing to enter her name on its register of approved consultants. She was of Greek origin and training. The insurer did not accept that her Greek certificate of higher professional ability as satisfying its rules for registration.

The courts held that the health insurer was not a ‘qualifying body’ within s.12 Race Relations Act 1976. S.12 referred to a body which had the power or authority to confer on a person a professional qualification or other approval needed to enable them to practise a profession, exercise a calling, or take part in some other activity. It did not include a body which was not authorised or empowered to confer such a qualification etc, but which (like the health insurer here) stipulated that for the purpose of its commercial agreements a particular qualification was required.

The 2008 Code (on the Disability Discrimination Act 1995) discussed certain situations where both educational institutions and an external body were 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.

Exceptions from definition of ‘qualifications body’

Some bodies within the general definition above are not treated as ‘qualifications bodies’ The main ones – listed in s.54(4) – are bodies already covered by other provisions of the EqA. 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 not a ‘qualifications body’, even as regards professional exams (s.54(4)(c)). A university cannot be a qualifications body even for part of its activities: Nwabueze below. Instead it is subject to the rules in Part 6 of the EqA, 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, [2020] EWCA Civ 1526, Court of Appeal
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, this page’s discussion of reasonable adjustments in OSCEs should be helpful also if a university is running the OSCE. (If the university’s action is due to constraints – particularly competence standards – required by the qualifications body, see next sub-heading.)

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) if they conduct their postgraduate exams for particular medical specialities.

Competence standards if both university and professional exam body are involved

It may potentially be tricky to decide the best route to seek 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 consistent with requirements of a professional body (such as the General Medical Council’s Outcomes for graduates: www.gmc-uk.org/undergrad_outcomes). Or there may be some other arrangement between the 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 could be argued that the requirements laid down by a qualifications body for approval of university degrees, which a person needs to pass to get professional registration, are part of the ‘arrangements’ made by the body for deciding who to register, so that they fall within s.53(1)(a) EqA. This would not in itself be enough for an EqA claim, but it may well be possible to identify a provision, criterion or practice (PCP) within those requirements which is argued to be indirect discrimination by the qualifications body contrary to s.19 EqA.
• Assuming there is an EqA breach by the qualifications body (previous bullet point), arguably a university applying a competence standard which is unlawfully required by a professional body might be liable under s.112 EqA (knowingly helping discrimination by the qualifications body). Less likely, 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? Maybe. 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 the discrimination by the university, so as to be liable under s.111 EqA. But s.111(7) may be a problem. Unless a claimant can argue that the qualifications body is knowingly ‘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). This 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 versus 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 (work).
• A university’s duty towards its students to make reasonable adjustments (except to competence standards) is ‘anticipatory’. So a university should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself. The anticipatory nature of the duty on universities may give rise to some uncertainties on how far it extends to ad hoc adjustments and takes into account individual circumstances. However it can be argued that 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 towards 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: below What the reasonable adjustment duty requires.
• The EqA expressly gives qualifications bodies a ‘lack of knowledge’ defence. By contrast, linked with the anticipatory nature of a university’s reasonable adjustment duty to its students (above), there is no express exception from the reasonable adjustment duty for a university which did not know of the disability or disadvantage. Even so, in deciding what steps it was reasonable to take, 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.
• Although 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 under s.15, ie discrimination arising from disability. In a s.53 employment tribunal claim against a qualifications body, competence standards themselves can only be challenged by way of indirect discrimination. In a county court claim 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: 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 may be applied (EqA Sch 8 para 15(2) and EqA s.53(7)). So the reasonable adjustment duty applies to how competence standards are assessed, ie how the exam body ascertains whether the candidate meets the competence standard (paragraphs 8.30ff and 8.20 of the 2008 Code). My Competence standards page discusses what is meant by a ‘competence standard’.

For example, the reasonable adjustment duty could apply to:

• whether the assessment should be oral or in writing – unless the competence standard itself necessitates one or the other, eg the ability to speak a language can only be tested orally (see Competence standards>Process inextricably linked with competence standard) and
• how long should be given for an oral exam, again except so far as dictated by the competence standard (see Competence standards>Time limits, and below Technical note: Time limits in professional exams).

This exception for what competence standard is assessed is in many respects unclear (below) – so 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.

What the reasonable adjustment duty requires

If a provision, criterion or practice (PCP) – other than a competence standard – applied by or on behalf of a qualifications body puts a disabled person at a substantial (ie more than minor or trivial) disadvantage in comparison with non-disabled people, the qualifications body must take such steps as it is reasonable to have to take to avoid the disadvantage (EqA s.20-21 and 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.

The reasonable adjustment duty on qualifications bodies, like that on employers (Reasonable adjustment rules: employment), is based on any disadvantage to the individual candidate and what is reasonable in the case of that individual. (This contrasts with the ‘anticipatory’ duty universities have towards their students.)

‘PCP’ is a wide concept (Reasonable adjustment rules: employment>What is a PCP?). It could include for example time limits, and assessing orally rather than in writing – if it is not a competence standard.

As well as the reasonable adjustment duty relating to PCPs, there is also:

• a reasonable adjustment duty to provide auxiliary aids and services (cf (Reasonable adjustment rules: employment>Auxiliary aids and services), and
• a reasonable adjustment duty in relation to physical features which put a disabled person at a disadvantage, eg a wheelchair user as regards stairs, or in one case a person with a voice problem was affected by increased noise levels arising from removal of a partition (cf Reasonable adjustment rules: employment>Physical features).

There are some examples of adjustments above. There are further examples in the context of the broadly similar rules applying to universities at Oral assessments, and assessed presentations>Examples of how assessments can be altered. However, anything that is 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, [2012] EWCA Civ 37, Court of Appeal
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.

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 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 needs to 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 applied:

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 a recruitment process. The employer refused to interview him when he failed it.

The court held that 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.

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’. The qualifications body’s knowledge of the disability and disadvantage can be either actual or constructive. The requirement to take reasonable steps to find out was also described in the 2008 Code (below) on qualifications bodies.

(There is an argument that the impairment having a more than minor or trivial effect 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 Paterson v Commissioner of Police of the Metropolis in Normal day-to-day activities>Recruitment and promotion. But obviously it’s best not to rely just on that.)

Knowledge: Indirect discrimination (s.19)

Although it is not totally clear, ignorance of the disability or disadvantage does not seem to be a defence to a claim for indirect discrimination (above). I discuss this at Knowledge of disability in indirect discrimination. Certainly s.19 EqA has no express statutory defence for lack of knowledge.

This is mainly relevant as to whether the competence standard itself is in breach of s.19 EqA. Apart from the lack of express statutory defence (which is the most important point), the lack of defence might also be argued to be consistent with the scheme of the legislation – namely that competence standards should not be adjusted in response to a particular individual’s needs, but should apply in the same way to everyone and (so far as they put disabled people at a disadantage) should be justified. It might be argued that accordingly the qualifications body should have reviewed its competence standards in advance as set out in the 2008 Code of Practice:

… steps which it is advisable for qualifications bodies to take [include] …

Regularly review any competence standards which relate to particular professional or trade qualifications to ensure that they are framed in a way which does not unnecessarily exclude disabled people from being able to meet them. This will involve carefully scrutinising each competence standard to check that it is not discriminatory. Consideration should be given to whether each standard can be objectively justified. Disabled people who work in the relevant profession or trade could be consulted to learn from their experiences, and factors such as changes in technology, which can enable people to do jobs in different ways, should be taken into account.
2008 Code para 2.18

Note: See also para 8.41 of the Code, below.

Under the reasonable adjustment duty it may be reasonable for a university to have to make an adjustment for all students without knowing of a particular student’s disability: Universities: Knowledge of disability>Applying an adjustment to all students. However the obligation on qualifications bodies when setting competence standards may be more onerous, in that (unlike with universities) a disabled candidate has no right to ask for an exception from the competence standard to cater for their disability, by way of reasonable adjustment.

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 advisable to co-operate with any investigation of the disability by the qualifications body. See on employers (but the underlying EqA 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 that the qualifications body requires, such as a report from a speech and language therapist. It is doubtful that qualification bodies are legally 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 that 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 this 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 reasonably be expected to pay 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 other candidates.

If it is right that the qualifications 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. 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 (OH) 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 second. But I don’t see why. 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’ (in employment tribunal claims, technically this is 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 qualifications body) 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. See further Reasonable adjustment rules: employment>Failure to consult, and trial periods.

See too on university exams Universities: Knowledge of disability>Cost of medical evidence, though the underlying legal rules there are somewhat different. There the EqA 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. However, 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 themselves (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 little case law on identifying the 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 on a separate page Competence standards, including regarding whether assessments must be oral (Competence standards>Process inextricably linked with competence standard) and time limits (Competence standards>Time limits).

There is a statutory definition, but it has been very little discussed by the courts. What professional bodies 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 is 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 within the workplace, but they stammer more and so take longer in the exam (with examiners present etc). Can reasonable adjustments including extra time be 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 for the qualifications body to justify under s.19 EqA (indirect discrimination).

Uncertainties: how far is a time limit a competence standard?

See Competence standards>Time limits, and also below Time limits in professional exams.

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.

Uncertainties: Truman case on drug test

See Competence standards>Technical note: Truman case on drug test.

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), such as 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 (or other PCP) 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 qualifications body can show that the standard meets the ‘objective justification’ test. It must show that 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 it as regards indirect discrimination on Group test for objective justification of indirect discrimination? The tribunal conducts a balancing exercise. It will be particularly important whether the aim of the qualifications body 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 discussed the objective justification test specifically in relation to competence standards at paras 8.36 – 8.41. Para 8.36 gave 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 talked about health (medical) standards. It said 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 considered how a qualifications body can avoid discrimination in relation to competence standards. The paragraph advised 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.’

See also para 2.18 of the 2008 Code, above.

Discrimination arising from disability (s.15)

Like for reasonable adjustment claims, the application of a competence standard (below) is not a breach of s.15 EqA by a qualifications body (s.53(7) EqA).

It may be unclear in a particular case whether s.53(7) allows a s.15 claim against a professional exams body. As well as s.15, it will normally be a good idea to claim also for failure to make reasonable adjustments, and – especially if challenging what may be a competence standard – for indirect discrimination under s.19 EqA. In Truman v SPL Powerlines below (about a drugs test) on the facts the EAT held that a s.15 claim was blocked by s.53(7) – but accepted that potential remedies for the claimant included claims for failure to make reasonable adjustments and/or indirect discrimination.

On a more positive note for claimants, in an appropriate case it seems to be possible to argue – as the claimant did in Truman v SPL Powerlines below – that s.53(7) does not apply because the qualifications body failed to apply its own competence standard.

Subject to s.53(7), the position for s.15 claims against qualifications bodies in respect of exams/assessments should be like that for universities, discussed at Oral assessments at university: the rules>Discrimination arising from disability (s.15). An example of the effect of s.53(7), though, is presumably that s.53(7) would block s.15 from requiring exceptions to a competence standard in a claim against a qualifications body, even if s.15 could require such exceptions in a county claim against a university.

So, always subject to s.53(7), if 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 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 doctor is marked down in an OSCE exam for not asking for sufficient information from a mock patient in the designated time. This was due to the doctor’s stammer. The doctor may argue that the issue was due to the artificial exam scenario, and would not have arisen in the workplace. 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 unfavourable treatment was the application of a competence standard.

Note: Claims for reasonable adjustments and indirect discrimination may also be relevant.

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

Truman case: s.15 held to be excluded by s.53(7)

Truman v SPL Powerlines UK, [2026] EAT 54
The claimant applied for a safety-critical job in the rail industry. The job required a Sentinel card from Network Rail, which included taking a drug and alcohol (D&A) test. The claimant was taking medical cannabis for an incurable medical condition (a disability). The company which tested him uploaded a ‘fail’ to the Network Rail website.

One of Network Rail’s policies (at para 9.4.4) provided that if acceptable medication resulted in a ‘fail’ of the D&A, then subject to certain preconditions it should be recorded as a ‘pass’. The employment tribunal found that under this policy, the claimant’s result should have been changed to a ‘pass’.

The EAT held that Network Rail (as a ‘qualifications body’) might be liable for failure to make reasonable adjustments. However a s.15 claim against it (eg for failing to take account of full medical information) was blocked by s.53(7), because the unfavourable treatment by Network Rail was the application of a competence standard. The EAT rejected an argument by the claimant that para 9.4.4 was part of the competence standard, so that by failing to apply para 9.4.4, Network Rail had not applied its competence standard.

The EAT said potential remedies included claims for failure to make reasonable adjustments and/or indirect discrimination (but not s.15).

Note: There is the separate issue, discussed at Competence standards>Technical note: Truman case on drug test of whether the EAT should instead have found para 9.4.4 to be part of the competence standard.

Why the difference in this case between the reasonable adjustment claims against Network Rail, which were allowed to proceed, and the s.15 claims against it which were blocked? S.53(7) EqA excludes both s.15 claims and claims for reasonable adjustments, if the alleged discrimination is the application by a qualifications body of a competence standard to a disabled person. Further, as regards reasonable adjustments claims against a qualifications body, EqA Sch 8 para 15(2) says that a provision, criterion or practice (PCP) does not include the application of a competence standard.

This is a difficult area, but I think the difference between what reasonable adjustments are blocked versus what s.15 claims are blocked makes some sort of sense. The disability discrimination on a claim under s.15 EqA is unfavourable treatment because of something arising in consequence of a disability. What was the unfavourable treatment in the Truman case?

1. The claimant set out four things which he argued were unfavourable treatment by Network Rail under s.15, including particularly Network Rail’s failure to take account of full medical information (issue 13 of the Agreed list of issues, at the end of the EAT decision). However, assuming this treatment is accepted as ‘unfavourable’, Network Rail could presumably argue that its failure to have regard to full medical information was not ‘because of’ anything arising in consequence his disability. The most obvious consequence of his disability was his being over the drug limit, and the prima facie ‘fail’ result in the D&A test. But Network Rail could argue that this fail was not a reason why it did not take account of full medical information. The D&A test result, or anything else resulting from his disability, was not Network Rail’s motivation for not taking full medical information into account. (I discuss the meaning of ‘because of’ at Discrimination arising from disability>’Because of’.)
2. The employment tribunal in Truman (at §134) seems to say that the way the unfavourable treatment was expressed in the parties’ Agreed list of issues ignored the real issue, namely Network Rail’s failure to confer the relevant qualification. This implies that the unfavourable treatment within s.15 might be the denial/withdrawal of his Sentinel card. Clearly Network Rail’s withdrawal of his Sentinel card was because of something (his failing of the drug test) arising in consequence of his disability. So it has the causal link required by s.15. However, assuming that Network Rail did apply its competence standard in withdrawing his card (despite omitting para 9.4.4), I can see there is at least a reasonable argument that this withdrawal of the card – the unfavourable treatment – was the application by Network Rail of its competence standard. If so, his s.15 claim was indeed blocked by s.53(7).
   (There may be an argument in favour of a s.15 claim being possible, but it is difficult to pinpoint what, given that the EAT in Truman was not clear what the competence standard was.)

So potentially, as regards his s.15 claim, the unfavourable treatment either did not have the required causal link with his disability (option 1 above), or was blocked by s.53(7) as the application of a competence standard (option 2).

His claim for reasonable adjustments against Network Rail, on the other hand, related to failures to make adjustments to the processes for assessing the competence standard. That is not the application of a competence standard (within s.53(7)). Also the competence standards were not the provisions, criteria and practices (PCPs) sought to be adjusted – which would be barred by Sch 8 para 15(2). Rather the PCPs were the processes that were used to assess the competence standards.

Other EqA claims

The other types of claim in the EqA can also apply to qualifications bodies – possibly subject to s.53(7) in the case of direct discrimination (‘disability discrimination’ referenced in s.53(7) does not include harassment or victimisation: s.25(2) 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.
• Harassment – see the example below.
• Victimisation where a qualifications body penalises someone 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 of claiming for judicial review does not bar a claim to the employment tribunal:

Michalak v General Medical Council (bailii.org), [2017] UKSC 71, Supreme Court; 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 that she had made against other doctors employed by her employer. An employment tribunal decided it had jurisdiction to consider her EqA claims regarding sex, race and disability discrimination from a certain date.

The Supreme Court held that 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 (para 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 judicial review is not a statutory appeal within s.120(7) EqA, 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, was 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 was 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 EqA 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 as it is now (s.14A(3) DDA).

Administrative law and other non-EqA claims

This website focuses on the Equality Act 2010 (EqA), but in two cases below, non-EqA claims were very important. The availability of these will depend on the particular case. In Karmakar, despite the failure of the EqA claims, on judicial review the RCGP’s decision was quashed as being irrational. In Islam, an appeal against a decision of the Qualifications Committee of the Bar Standards Board, it was accepted that the High Court judge should consider the case as a ‘rehearing’, so that the judge considered the exercise of discretion himself afresh.

Some cases

Truman v SPL Powerlines UK, [2026] EAT 54
The claimant applied for a safety-critical job in the rail industry. He needed a Sentinel card from Network Rail for this, which included taking a drug and alcohol test. He was taking medical cannabis for an incurable medical condition. The company which tested him uploaded a ‘fail’ to the Network Rail website, but the employment tribunal said that under Network Rail’s Policy on medications, this should have been changed to a ‘pass’. The EAT held that Network Rail (as a ‘qualifications body’) might potentially be liable for failure to make reasonable adjustments, but the testing company was not liable under s.111(2) EqA for ‘causing’ any discrimination by Network Rail.

Note: This case is considered above at What is a ‘qualifications body’? and Truman case: s.15 held to be excluded by s.53(7), and also at Competence standards>Technical note: Truman case on drug test.

R (Karmakar & BMA) v Royal College of General Practitioners, [2024] EWHC 2211 (Admin), High Court
The High Court upheld a claim that it was irrational for the Royal College (RCGP) to simply refuse to consider additional attempts at a written assessment for becoming a GP, if the candidate was later diagnosed with a disability that would have entitled her to reasonable adjustments. Her claim therefore succeeded under administrative law.

This meant the court did not have to consider her EqA claims, but it did so and concluded that they would fail, despite the treatment being irrational. The court said that the provision, criterion or practice (PCP) applied only to disabled people, and so could not found a claim for reasonable adjustments or indirect discrimination.

Note: I think this decision can be criticised in various ways, as discussed in My comments on the case.

Abrahart v University of Bristol, [2024] EWHC 299 (KB), High Court
A university was held liable under the EqA. 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. The EHRC has issued an advice note for the higher education sector on this case.

Note: This was about a claim against a university rather than a qualifications body (so not under s.53 EqA), but it is particularly interesting in considering what the competence standard was, in particular it did not require oral assessment: Competence standards>Example: Abrahart case.

Nwabueze v University of Law Ltd, [2020] EWCA Civ 1526, Court of Appeal
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 solicitors professional 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.

Note: See above Universities.

Islam v Bar Standards Board, 2012, High Court
The Bar Standards Board (BSB) had not allowed the appellant to proceed to the Vocational Stage of qualifying as a barrister. He did not have a 2:2 honours degree, so under the criteria applied by the BSB, there had to be clear evidence that he was academically of (at least) second class quality overall.

He argued that his university had not made sufficient adjustments for his sight disability, pulling down his grade.

The High Court upheld the BSB decision. Under the EqA and previous DDA 1995, the competence standard was a proportionate means of achieving a legitimate aim (justification).

Outside of equality law, the High Court reconsidered whether the appellant should be allowed to proceed to the Vocational Stage, and decided that he should not.

Technical note: Time limits in professional exams

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 (or is required by) a competence standard, and so is not subject to the reasonable adjustment duty. See on this issue Competence standards>Time limits.

Time limits have sometimes been extended in medical OSCE exams – discussed above in Compensating for increased effects of stammer in exam compared with workplace. So examining bodies may not necessarily be arguing that time limits are required by competence standards.

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

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

As well as the reasonable adjustment duty, s.15 could also apply.

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 (or is required by one), if the time limit puts disabled people at a particular disadvantage, it (or the competence standard requiring 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.