Sections 53 and 54 Equality Act 2010 prohibit disability discrimination by professional and trade qualifications bodies, including in professional exams. Examples include the General Medical Council (doctors), the Public Carriage Office (taxis and minicabs) and CORGI (registered gas fitters).
Summary and seeking adjustments
Bodies conducting professional and trade exams are subject to the Equality Act under ss.53 and 54: see Legal summary, below. The Equality Act calls them “qualifications bodies”. (Universities and FE, below, are not “qualifications bodies”. They are covered elsewhere in the EqA, but there are some differences in the rules.)
For people who stammer, issues arise particularly with medical OSCE exams (wikipedia.org) where candidates have to go round different “stations” examining a mock patient at each. Examples of possible 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).)
- examiners being given information about the individual’s stammer and its effects, including hidden effects, and not marking the candidate down for consequences of the stammer such as:
- sounding uncertain or hesitant
- not using particular terminology the person finds difficult to say
- examiners and actors being given information about the stammer (as above) and on how to respond as a listener
- 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
- perhaps taking into account evidence (eg from senior clinicians) of the person’s abilities in the actual workplace, which are what matter and may not show in the normal exam.
There are further examples in the context of universities at Oral exams and assessed presentations>Examples of how exams can be altered.
Hartman v National Board of Medical Examiners, United States District Court for the Eastern District of Pennsylvania, 2010
The medical examining board in this U.S. case had already agreed that the claimant could have double time for each patient encounter, and replace telephone patient encounters with in-person encounters.
Note: Extra time has also been agreed in British OSCE exams.
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)”.
The reasonable adjustment duty does not apply to what competence standards can be assessed, as there should be a single set of standards for everyone. However if a competence standard disadvantages disabled people, the qualifications body can be liable for “indirect discrimination” unless the body shows the standard is a proportionate means of achieving a legitimate aim (“justification”). See further the Legal summary (below).
A qualifications body (the rules are a bit different for universities, below) is only required to make reasonable adjustments if it has actual or constructive knowledge (below) of the disability – ie of facts that mean the stammer is a disability within the EqA – and of the (more than minor or trivial) disadvantage at which the disabled person is likely to be put by the exam arrangements. (An alternative type of claim, under s.15 EqA, only requires knowledge of the disability.) “Constructive knowledge” is what the body would have found out had it made the enquiries it could reasonably be expected to make. For reasonable adjustments, I suggest it is particularly important for the candidate to tell the examining body the ways in which the exam (including the fact it is oral) puts the candidate at a disadvantage compared with non-disabled people, such as:
- not being able to say so much within the time limits,
- difficulty using certain terminology because the person finds it difficult to say,
- exhaustion from the effort of stammering,
- the stammer’s effects being mistaken as uncertainty etc,
- the stammer’s effects in this exam situation being more severe than in the workplace (I’m not sure whether that’s a relevant “disadvantage” but it may be a point worth making if correct).
It is clearly sensible for the candidate to suggest reasonable adjustments to the qualifications body so far as the candidate can. However the qualification body’s duty to make reasonable adjustments can go beyond anything suggested by the candidate at the time of the exam, provided the body has the requisite knowledge (above) of the disability and disadvantage: below Adjustment may not have been suggested at time of exam.
The qualifications body is likely to want medical evidence. There is doubt whether it can 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?
Practicality will be a relevant factor in deciding what adjustments are “reasonable”. For example some adjustments requiring extra time or even extra days may require substantial advance notice as they may necessitate arrangments for both personnel and physical space to be available for longer. So it will normally make sense to apply for any adjustments as early as possible.
- Unlike most education disputes, a claim against a professional qualifications body goes to the employment tribunal (unless a statutory appeal is available as with the GMC), rather than to the County Court, or sheriff court in Scotland. This means the time limit for bringing a claim is generally 3 months, not 6 months. The time limit runs from when the discrimination happened. Internal complaints or appeals do not pause the time limit.
- The qualifications body is obliged to make reasonable adjustments to the process by which it assesses the relevant competence standards (below), for example whether assessment is oral or written unless the competence standard requires one or the other. Unlike a university’s duty to students, the duty is individual-based (like the duty on employers) rather than anticipatory. Below Reasonable adjustments: process for assessing a competence standard.
- The qualifications body can be liable for indirect discrimination (s.19 EqA) as regards what competence standards it is lawful to assess. Where the standards being assessed (eg certain oral skills) put people with a disability at a particular disadvantage, then in any tribunal case it is for the qualifications body to show that assessing those standards is a proportionate means of achieving a legitimate aim. For example the standards must not disadvantage someone with a disability more than need be. This is called “objective justification”. Below Indirect discrimination: What competence standard can be applied.
- Tricky questions can arise on whether a time limit in a particular case is subject to the reasonable adjustment duty, or exempt from that duty as a competence standard. However even if not subject to reasonable adjustments, it can still be indirect discrimination so the qualifications body must show the time limit is objectively justified. Below Technical note: Time limits and, whether or not it is a competence standard, below Arguments on what is reasonable and/or justified.
- At least for some types of claim, the qualifications body has a defence if it did not know of the disability, and sometimes the relevant disadvantage: below Knowledge, medical evidence, and who pays for it. There is doubt whether a qualifications body can require an exam candidate to pay for any medical evidence of disability it requires: below Knowledge, medical evidence, and who pays for it>Does the individual have to pay for medical evidence?.
- These rules in ss.53 and 54 EqA apply for example to the General Medical Council (doctors), the Public Carriage Office (taxis and minicabs) and CORGI (registered gas fitters). Universities and FE colleges are subject to their own (wider) rules. Also this page focuses on exams, but “qualification” is very broadly defined. Accordingly these rules in ss.53-54 can apply well beyond exams, for example where membership of an association facilitates engagement in a particular profession, or perhaps in deciding whether a police officer has completed their probationary period. Below What is a “qualifications body”?
The reasonable adjustment duty (below) does not apply to what competence standards can be assessed, as there should be a single set of standards for everyone. However a competence standard is still subject to the Equality Act by way of a claim for indirect discrimination (below). If it disadvantages disabled people, the qualifications body can be required to show it is a proportionate means of achieving a legitimate aim (below), bearing in mind its detriment on disabled people. For example, if people who stammer could do the actual job (or some specialisms within the job) but are being blocked by the exam, that could be an argument that the relevant competence standard is not justified, and so unlawful indirect discrimination: below Arguments on what is reasonable and/or justified.
Sometimes a competence standard (below) is so bound up with how it is assessed that possible adjustments are limited. For example in an exam to become an interpreter, ability to speak Russian cannot be examined through a written test. Similar issues sometimes arise on Time limits (below).
There are some examples of adjustments above, and also examples in the context of the broadly similar rules applying to universities at Oral assessments, and assessed presentations. Some examples may be changes to competence standards which are not “reasonable adjustments” but where the competence standards may not be justified.
Arguments on what is reasonable and/or justified
I suggest the following may be some relevant arguments as to whether an adjustment is “reasonable” (below), or whether a competence standard is “justified” as a proportionate means of achieving a legitimate aim: Indirect discrimination: Objective justification (below). They largely take the OSCE as an example, and were written thinking particularly of extending time limits. However similar points will apply to many professions or trades, and to other types of adjustment. Relevant arguments are likely to be similar whether the issue is reasonableness or justification.
- How is the person’s communication in an actual work situation? The stammer may well be more severe in the exam, for example due to increased anxiety. If the person has done work placements, is speech an issue there, and does it get in the way of doing the job? For a similar point on job interviews see Oral interview not appropriate way to assess oral skills, as exemplified in the American Ohio firefighter case where a firefighter was rejected because he stammered in the interview. This was held illegal because his stammer did not interfere in the different situation of dealing with a fire. (Compared with deciding what adjustments are “reasonable”, an individual’s particular circumstances may be less relevant when deciding in an indirect discrimiation claim whether competence standards are “justified”: Group test for objective justification of indirect discrimination? But in practice the individual circumstances are still likely to be taken into account.)
- Say a person can perform fine in the workplace (perhaps with testimonials from senior doctors), but their stammer has a greater effect in the oral exam. Perhaps this is 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.
- Is it justified to insist that the professional must have that particular oral ability, given the different types of job available? In the case of a doctor, for example, are there some types of doctor for which those OSCE abilities within particular time constraints are not required? In a U.S. case, Hartman v National Board of Medical Examiners, the exam candidate intended to enter pathology which would involve little or no contact with patients. And there may be various other roles where doctors have contact with patients but ability to meet all the OSCE requirements is not required.
- Linked with that, are particular oral abilities better seen as a matter between employer and employee, bearing in mind the employer’s duty to make reasonable adjustments, and also bearing in mind the duty of a professional to recognise any limitations in their abilities? (Any professional has limitations.)
- What is the position if a doctor develops a stammer in later life, through having a stroke for example, such that they would be unable to pass the OSCE exams within those particular time limits. Are they then debarred from practicising? If not, why should the exam candidate with a stammer be barred from becoming a doctor? Are those time limits really necessary professionally? (Compare the example in para 8.36 of the 2008 Code, where a fitness standard required was likely to be unjustified given it was much higher than many people actually working in that job could now achieve).
- 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 U.S. 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.)
Code of Practice
There is no Code of Practice for these rules in ss.53-54 Equality Act 2010. However, there is a 2008 Code of Practice issued under the Disability Discrimination Act 1995 (DDA): Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (dera.ioe.ac.uk). I call this the “2008 Code”. It is possible that tribunals are still obliged to have regard to this Code, but even if they do it is not binding.
Some parts of the Code are out-of-date because the Equality Act has some differences from the DDA. However, an area which has not changed is that the reasonable adjustment duty does not apply to a competence standard. Also, although the DDA had no concept of “indirect discrimination”, the objective justification test to be met by a competence standard (proportionate means of achieving a legitimate aim) was the same then as it is now (s.14A(3) DDA).
What is a “qualifications body”?
Under s.54 EqA a qualifications body is an authority or body which can confer (or renew or extend) an “authorisation, qualification, recognition, registration, enrolment, approval or certification. which is needed for, or facilitates engagement in, a particular trade or profession.” This definition is subject to some exceptions (below) – such as universities – which are mostly covered by other parts of the Equality Act. The definition of qualifications body is discussed at para 8.5 to 8.8 of the 2008 Code of Practice.
Examples of qualifications bodies include the General Medical Council (doctors), the Public Carriage Office (taxis and minicabs) and CORGI (registered gas fitters).
Burke v College of Law, Court of Appeal, 2012
For solicitors’ qualifications, the College of Law was held to be a qualifications body, as well as the Solicitors Regulation Authority.
Note: The College of Law has since become the University of Law, and may well now be within the rules for universities (below) rather than being a qualifications body.
There need not be an exam. Also the qualification, authorisation or enrolment etc may only facilitate engagement in a particular trade or profession, rather than being required. For example para 8.6 of the 2008 Code of Practice says “In some cases, simply being a member of an organisation or body may amount to such a qualification if membership itself facilitates engagement in a particular profession or trade”. Para 8.8 of that Code talks of professions/trades where educational institutions or other bodies devise, run and examine their own courses but an external body controls approval for entry into the profession or trade. The Code says the external body is likely to be a qualifications body if it performs any of certain functions set out in the Code.
Pemberton v Inwood (bailii.org), Court of Appeal, 2018
A Bishop was held to be a qualifications body in respect of his refusal to grant to a Canon an “Extra Parochial Ministry Licence” which was a necessary requirement to be appointed as Chaplaincy and Bereavement Manager in a hospital within the Diocese.
Hart v Chief Constable of Derbyshire (bailii.org), EAT, 2007
The Employment Appeal Tribunal raised the possibility, without deciding the point, that a police authority might be seen as a qualifications body in deciding whether an officer had completed their probationary period. (See also the refusal of leave to appeal to Court of Appeal (bailii.org) in that case.)
Exceptions from definition of “qualifications body”
The main exceptions – in s.54(4) – are bodies already covered by other provisions of the Equality Act. These other 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) confering GCSEs, A-levels and the like falling within s.96 EqA.
Universities etc (Part 6 EqA)
Universities and other bodies within s.91 EqA are excluded from being a “qualifications body” (s.54.(4) EqA). They are subject to the somewhat different rules in Part 6 of the Equality Act. So there may be differences so far as universities etc are responsible for professional exams. Universities etc still have Equality Act obligations, but differences from the obligations of qualifications bodies include the following:
- Claims against universities and other Part 6 bodies will normally go to the County Court (sheriff court in Scotland) rather than to the employment (or specialist) tribunal. Where both a university and a qualifications body are involved, there may be the unsatisfactory situation of claims having to be brought against each in different courts, unless say one body aided or induced discrimination by the other. There are similar issues with university work placements: Work placements related to education courses>Which court?
- Universities have a duty to make reasonable adjustments (apart from competence standards) but this duty towards students is “anticipatory”. So universities should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself. The anticipatory nature of the duty does give rise to some uncertainties on how far it extends to ad hoc adjustments and taking into account individual circumstances. However it can be argued the duty is wide: Ad hoc adjustment duty on service providers, including technical guidance on further and higher education.
- Linked with the anticipatory nature of a university’s reasonable adjustment duty towards its students (above), there is no express exception from this duty for a university which did not know of the disability. However the university may in effect have a defence if it did not know of the disability despite having taken all reasonable steps: Universities: Knowledge of disability>Reasonable adjustments. Also arguments on whether a university must meet the cost of medical evidence are technically different but may lead to much the same result as for a qualifications body: Universities: Knowledge of disability>Cost of medical evidence.
- Though the reasonable adjustment duty does not apply to what competence standards can be applied, for universities (and other Part 6 bodies) that exception does not extend to claims for discrimination arising from disability (s.15). Against a qualifications body, competence standards can only be challenged by way of indirect discrimination. Against a university, a candidate might bring a claim for being marked down (even though due to a competence standard) unless the university can show justification given that individual’s circumstances. (I’m updating the Part 6 pages to cover this better.)
Under s.53(7) EqA the only basis on which the application of a particular competence standard (below) can be challenged is indirect discrimination under s.19 EqA: separate page Indirect discrimination. Broadly there is indirect discrimination if:
- the qualifications body applies a provision, criterion or practice (PCP), for example a competence standard, to people generally but
- the PCP puts people with a particular disability (including the claimant) at a particular disadvantage in comparison with people who do not have that disability, and
- the body cannot show that the standard is a proportionate means of achieving a legitimate aim (this is known as the “objective justification” defence: below Indirect discrimination: Objective justification).
The reasonable adjustment duty does not apply as regards what competence standards can be assessed. The idea is that it is highly desirable for qualifications bodies to be able to apply one professional standard to all applicants, rather than being obliged to adjust the standard on a case-by-case basis. But if the standard disadvantages disabled people, it must meet the objective justification test.
Indirect discrimination: Objective justification
So as regards what competence standard can be applied, the most important question is likely to be whether the body can show it meets the “objective justification” test. It must show the standard is a proportionate means of achieving a legitimate aim. I give more detail on this test generally on my Objective justification page and, as regards indirect discrimination, on Group test for objective justification of indirect discrimination? The tribunal conducts a balancing excercise. It will be particularly important whether the aim can be achieved by alternative less discriminatory means. There is also the question whether the detriment to people with that type of disability outweighs the importance of the aim to be achieved.
I set out above some specific arguments on stammering in professional exams: Arguments on what is reasonable and/or justified. The present section looks at the test more generally
The 2008 Code of Practice discusses the objective justification test specifically in relation to competence standards at paras 8.36 – 8.41. Para 8.36 gives the example of a disabled person who fails a fitness test, but the qualifications body had not reviewed the fitness standards to see if they were proportionate to the requirements of the job. If it had done so, it would have found that the fitness standard demanded was much higher than many people actually working in that job could now achieve (even though these people achieved that standard at the time of qualification). The qualifications body would therefore be unlikely to be able to justify this competence standard.
Para 8.39 of the Code talks about health (medical) standards. It says stereotypical assumptions about health and safety implications should be avoided. A qualifications body would have to provide cogent evidence that the medical standard is genuinely fundamental to the needs of the profession or trade in order to ensure the competence of practitioners.
Para 8.41 considers how a qualifications body can avoid discrimination in relation to competence standards. The paragraph advises that it is more likely to be possible to justify competence standards if their nature and effect has been considered in advance. It is advisable for a qualifications body to review and evaluate competence standards, which might involve:
- “identifying the specific purpose of each competence standard which is applied, and examining the manner in which the standard achieves that purpose
- considering the impact which each competence standard may have on disabled people and, in the case of a standard which may have an adverse impact, asking whether the application of the standard is absolutely necessary
- reviewing the purpose and effect of each competence standard in the light of changing circumstances – such as developments in technology
- examining whether the purpose for which any competence standard is applied could be achieved in a way which does not have an adverse impact on disabled people, and
- documenting the manner in which these issues have been addressed, the conclusions which have been arrived at, and the reasons for those conclusions.”
Reasonable adjustments: process for assessing a competence standard
When it comes to how competence standards are assessed, the reasonable adjustment duty applies (paragraphs 8.30ff and 8.20 of the 2008 Code). Examples include whether the assessment should be oral or in writing, and how long should be given for an oral exam, unless these are dictated by the competence standard being assessed (eg ability to speak a language, or perhaps to do something specifically within that time limit). Indeed, broadly the reasonable adjustment duty applies to anything other than what competence standard (below) may be applied (EqA Sch 8 para 15(2) and EqA s.53(7)).
The reasonable adjustment duty requires that where a provision, criterion or practice (PCP) – apart from a (lawful?) competence standard – applied by or on behalf of a qualifications body places a disabled person at a substantial (ie “more than minor or trivial”) disadvantage in comparison with non-disabled people, the qualifications body must take reasonable steps to avoid the disadvantage. PCP is a wide concept and could include for example time limits, and assessing orally rather than in writing (if it is not a competence standard).
There is also a duty to provide auxiliary aids and services, and a duty in relation to physical features which put a disabled person at a disadvantage, eg stairs as regards a wheelchair user.
There are some examples of adjustments above, and also examples in the context of the broadly similar rules applying to universities at Oral assessments, and assessed presentations. However anything there which is a (lawful?) competence standard would have to be challenged through indirect discrimination rather than the reasonable adjustment duty. There is a technical note on time limits below.
Burke v College of Law, Court of Appeal, 2012
Sufficient reasonable adjustments (including extra time) were held to have been given to a student with multiple sclerosis who was taking exams to become a solicitor. His claim therefore failed.
The competence standard may be such as to place constraints on how it can be assessed. For example, ability to speak a language can only be tested orally, not in writing: below Situations where the assessment process is bound up with the competence standard.
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 may not have been suggested at time of exam
The claimant does not necessarily need to have suggested the particular adjustment at the time of the exam (Latif case below) – although of course it is advisable to do so if possible, and the qualifications body does need actual or constructive knowledge (below) of the disability and disadvantage. However by the time of the tribunal hearing there should be some indication of what adjustments the claimant alleges ought to have been made. The burden of proof then shifts to the qualifications body to show that the adjustment indicated would not have been reasonable. This shift in the burden of proof applies to reasonable adjustments in employment generally – Reasonable adjustment rules: Employment>Burden of proof – but was established in a case specifically 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 claim against an employer but the same rules apply:
British Telecommunications v Meier, Northern Ireland Court of Appeal, 2019
A job applicant was at a disadvantage in a situational judgment test because he had Asperger’s syndrome. This test was the initial stage in the recruitment process. The employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments. It did not matter that the claimant had not suggested at the time what reasonable adjustment he wanted.
“Lack of knowledge” defence
Under EqA Sch 8 para 20 the reasonable adjustment duty does not apply if the qualifications body does not know and could not reasonably be expected to know that:
- the person has a disability; and
- is likely to be placed at the relevant more than minor or trivial disadvantage.
Is reasonable adjustment duty excluded by an unlawful competence standard?
What if the tribunal finds that a competence standard is unlawful indirect discrimination (above) under s.19 EqA, because it is not sufficiently justified? Does the competence standard still exclude or limit the reasonable adjustment duty? This is not clear. However I think there is a real possibility that a court would find the standard does not exclude or limit reasonable adjustments so far as it is unlawful.
Discrimination arising from disability (s.15)
Subject to that important exception, whenever a student is marked down or otherwise treated unfavourably for something which resulted from their stammer – for example dysfluency, hesitating, taking longer, saying less, circumlocuting or whatever – s.15 EqA is potentially relevant. Provided the qualifications body knows or could reasonably be expected to know (below) of the disability, the body is liable under s.15 EqA unless it can show the unfavourable treatment is justified as being a proportionate means of achieving a legitimate aim.
Example: A medical student is marked down in an OSCE exam for not completing the assessment of a mock patient in the designated time. The student’s failure to complete it was due to his stammer. Provided the exam body knew or could reasonably have been expected to know of the disability, this should be a breach of s.15 EqA unless (a) the exam body can show that marking the person down was sufficiently justified, or (b) the time limit was a “competence standard” or perhaps marking him down was necessitated by a competence standard.
Note: Whether s.15 is excluded here because the unfavourable treatment (marking the person down) amounts to the application of a competence standard would be a tricky question for the tribunal to decide (below Technical note: Time limits) – though OSCE boards do seem to allow extension of time limits which implies the time limits themselves are not competence standards. The important point though is that even if it is a competence standard so s.15 does not apply, the student could claim indirect discrimination under s.19 (above) unless the exam body shows the competence standard it is justified.
S.15 is discussed further, in the context of university exams, at Oral assessments at university: the rules>Discrimination arising from disability (s.15). The exclusion of competence standards from s.15 is not discussed there, however, because the exclusion does not apply to a university’s own exams.
On the knowledge defence, see below Knowledge, medical evidence, and who pays for it.
Other EqA claims
The other types of claim in the Equality Act can also apply to qualifications bodies, again assuming the issue is not whether a particular competence standard can be applied (s.53(7) EqA). The possible types of claim are basically the same as those against employers, namely:
- Direct discrimination, eg this may be relevant if less favourable treatment is based on generalised or stereotypical assumptions about the disability or its effects. There is no “objective justification” defence for this. See Direct discrimination, and paras 4.4 to 4.21 of the 2008 Code.
- Harrassment – see the example below.
- Victimisation where a qualifications body penalises somone for making or being involved in a discrimination claim (against the qualifications body or anyone else).
An example of harassment:
An assessor from a motor mechanics qualifications body is judging a number of practical tasks performed in the workplace by a trainee motor mechanic who has a speech impairment. The assessor imitates the mechanic’s manner of speech and makes offensive remarks about him to the trainee’s line manager. This is harassment, whether or not the disabled man was present when the comments were made, because they were made with the intention of humiliating him.
Para 4.37 of the 2008 Code of Practice
Knowledge, medical evidence, and who pays for it
Knowledge: Basic rules
A qualifications body has a defence to a reasonable adjustments claim (above) and to discrimination arising from disability under s.15 (above) 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)).
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 more than minor or trivial disadvantage (EqA Sch 8 para 20). However on a claim under s.15, the qualifications body can be liable 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 few points in brief:
- Knowledge on the part of any member of the qualification body’s staff – in that capacity – should usually be enough.
- What the body did not know but could reasonably be expected to know – if it had taken reasonable steps to make enquiries – is generally called “constructive knowledge”. This duty to take reasonable steps to find out is also in the 2008 Code (below) on qualifications bodies.
- What matters is whether the qualifications body has actual or constructive knowledge of the facts of the disability, for example facts about the stammer 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.
(There is a possible argument that more than minor or trivial difficulty just in the professional exam is enough for the stammer to be a disability, on the basis that the exam is itself a normal day-to-day activity in the context of an employment claim. See particularly the Paterson case in Normal day-to-day activities>”Day-to-day” activities. But obviously it’s best not to rely just on that.)
Knowledge: Indirect discrimination (s.19)
Whether and how far knowledge of the disability and any disadvantage is relevant to indirect discrimination (above) is not clear. This type of claim has no express defence for lack of knowledge. See Knowledge of disability>Indirect discrimination – is knowledge required? It can also be argued that the qualifications body should have reviewed its competence standards in advance as set out in the (old) 2008 Code, above, and that knowledge should not matter since the scheme of the legislation is not for competence standards to be adjusted in response to a particular individual’s needs but that they should apply in the same way to everyone and be justified.
Can a qualifications body insist on medical evidence?
In other words, can a qualifications body say it has neither actual nor constructive knowledge of the disability and disadvantage unless it has medical evidence?
This will depend on the facts, but in practice it is a good idea to co-operate with any investigation of the disability by the qualifications body. See on employers (but the underlying rules are the same) Employer requiring medical evidence for reasonable adjustment?
Does the individual have to pay for medical evidence?
I understand some qualifications bodies insist that the individual has to bear any costs of obtaining medical evidence it requires. It is doubtful that qualification bodies are entitled to do this, for two reasons.
Firstly s.20(7) EqA makes clear that the person required to make a reasonable adjustment is not entitled to require the disabled person to pay any of the costs of complying with the duty. It might be argued this means a disabled exam candidate need not pay the costs of medical evidence, such as a report from a speech and language therapist, if the qualifications body insists on one as condition of making the adjustment. However that is not clear. A qualifications body might try to argue that medical evidence is just part of establishing whether or not it has to comply with the duty.
In any event, as regards both reasonable adjustments and s.15 claims, a qualifications body is treated as having “constructive knowledge” of anything it would have found out had it done all it can reasonably be expected to do to find out whether the person has a disability and (for reasonable adjustments) would likely be at a disadvantage: Knowledge of disability>Constructive knowledge. Can a qualifications body be reasonably expected to pay any costs of medical evidence which it asks for? I suggest a court is likely to say yes, at least in most cases. Otherwise the exam candidate effectively has to pay to get reasonable adjustments etc to put them on an equal footing with others. If it is right that the body can reasonably be expected to meet costs, it seems a body has “constructive knowledge” of what it would have discovered had it paid for a medical report which it requires. Ultimately it would be for the employment tribunal (or other tribunal) to decide what steps – including payment – a qualifications body can reasonably be expected to take to find out about the disability and any disadvantage. (I can see there could 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, the employer pays for an opinion from Occupational Health as to whether the person has a disability. Theoretically it might be argued that the different circumstances of qualifications bodies versus employers make it reasonable for the individual to meet the costs in the first case but not the latter. I don’t really see why though. These are costs specifically relating to the qualifications body’s functions (cf para 36-37 of the EAT decision in Project Management Institute v Latif).
Also note that in deciding what adjustments are “reasonable” (technically different from what the body could reasonably be expected to know) ignorance through failure to carry out a proper assessment is not an excuse. Although failure to carry out an assessment is not in itself illegal, in Project Management Institute v Latif>Failure to carry out assessment (a case specifically on a professional exam) the Employment Appeal Tribunal said that a respondent, be it an employer or qualifications body, cannot rely on failure to carry out a proper assessment as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified. There was of course no suggestion that the claimant must pay for the assessment. See further Reasonable adjustment rules: employment>Assessment consultation and trials.
See too on university exams Universities: Knowledge of disability>Cost of medical evidence, though the underlying legal rules there are somewhat different. There the Equality Act does not mention knowledge, and the reasonable adjustment duty is “anticipatory”.
Knowledge: 2008 Code of Practice
The 2008 Code says among other things, as regards the reasonable adjustment duty:
- A qualifications body must do all it can reasonably be expected to do to find out whether the person has a disability and is likely to be placed at a substantial disadvantage (para 5.11). There is no later (Equality Act) Code on qualifications bodies, but for same statutory provision as regards 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)
Unless resolved through grievance procedures, disputes can normally be taken to an Employment Tribunal (subject to a time limit). ACAS can get involved to conciliate, and indeed must now be approached before a tribunal claim is submitted. However the Employment Tribunal is not used where a statutory appeal is available (EqA s.120(7)), such as to the General Medical Council.
Technical note: Time limits in professional exams
(On time limits in university exams (within Part 6 EqA), see Oral assessments at university: the rules>Competence standards: Time limits.)
Time limits: Reasonable adjustments
If a student asks for an extension of time in a professional oral exam, the qualifications body will sometimes argue that the time limit is itself a competence standard (below), and so not subject to the reasonable adjustment duty. (However time limits have been extended in medical OSCE exams – discussed in the Summary above – so examining bodies may not be arguing those time limits are competence standards.)
Para 8.28 (below) of the 2008 Code (which is not necessarily right) gives “ability to carry out a particular task or activity within a set period of time” as something which would “probably” be a competence standard. Para 8.20 (below) of the Code gives a shorthand exam as an example of this.
The appeal courts have yet to clarify in what circumstances a time limit is a competence standard. The Court of Appeal unfortunately skirted the issue in Burke v College of Law, 2012. However, a judge there indicated that although ability to work under a time constraint was a competence for a solicitor, it did not necessarily follow that sitting the exams under that particular time constraint was a competence standard. This point was made by Lewison LJ in giving leave to appeal to the Court of Appeal. The case helps in arguing that a particular time limit imposed in the exam may not itself be a competence standard, even though there may indeed be time pressure in the “real life” work situation.
Some arguments as to what time limit is reasonable are discussed above: Arguments on what is reasonable and/or justified.
Time limits and indirect discrimination: Is the competence standard justified?
Even where the reasonable adjustment duty does not apply (because the time limit is a competence standard), if the time limit puts disabled people at a particular disadvantage, such as in the OSCE, it must be justified as a proportionate means of achieving a legitimate aim: above Indirect discrimination: Objective justification.
It is for the qualifications body to show that the standard is justified. It will be important whether the aim can be achieved by less discriminatory means, and whether the detriment to disabled people outweighs the importance of the aim to be achieved. There is a balancing exercise by the tribunal.
Some arguments as to what is justified are discussed above: Arguments on what is reasonable and/or justified.
Time limits: Discrimination arising from disability (s.15 EqA)
S.15 might also apply if the time limit is not required by a competence standard: see example above.
Technical note: What is a “competence standard”?
Importance of what is a competence standard
S.53(7) EqA says the application by a qualifications body of a competence standard is not disability discrimination unless it is indirect discrimination. Also, on reasonable adjustments, EqA Sch 8 para 15(2) says a provision, criterion or practice (PCP) does not include the application of a competence standard. The effect of Sch 8 para 15(2) is that there is no right to reasonable adjustments if the application of a competence standard puts a disabled person at a disadvantage.
In other words, as explained by the 2008 Code (eg para 8.27 to 8.34), the duty to make reasonable adjustments (above) – and other types of EqA claim – can apply to the process of assessing the competence standard, but do not apply to the application of the competence standard, ie what standard should be applied. The latter question is subject to review only as indirect discrimination (above), where the qualifications body has a defence if it shows the competence standard is a proportionate means of achieving a legitimate aim. The idea is that competence standards should be consistent standards that do not have to be adjusted for individual circumstances, but also they must not be unjustifiably discriminatory.
Definition of ‘”competence standard”
A competence standard is defined as:
“an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”
The 2008 Code (which is not binding, even if still in force) explains that, for example, having a certain standard of eyesight is a competence standard required for a pilot’s qualification – presumably a “medical” standard. Having a certain level of knowledge of the UK taxation system is a competence standard for an accountancy qualification (para 8.27 of the Code). The Code goes on to say:
A requirement that a person has a particular level of knowledge of a subject, for example, or has the strength or ability to carry out a particular task or activity within a set period of time, would probably be a competence standard.
Para 8.28, 2008 Code. On time limits, see above Time limits in professional exams.
The standard must relate to a level of “competence or ability”. Accordingly the Code (at para 8.29) says a condition that a person has, for example, a certain length of experience of doing something will not be a competence standard if it does not determine a particular level of competence or ability. So a requirement that a candidate must have at least ten years continuous experience is unlikely to amount to a competence standard. A person who has two periods of experience which total ten years may have equivalent ability and experience.
Situations where the assessment process is bound up with the competence standard
The 2008 Code says:
8.31 Sometimes, of course, the process of assessing whether a competence standard has been achieved is inextricably linked to the standard itself. The conferment of some qualifications is conditional upon having a practical skill or ability which must be demonstrated by completing a practical test. The ability to take the test may itself amount to a competence standard.
Para 8.31 of the 2008 Code goes on to give some examples, including:
An oral examination for a person training to be a Russian interpreter cannot be done in an alternative way, e.g. as a written examination, because the examination is to ascertain whether someone can speak Russian.
A driving test for a heavy goods vehicle licence cannot be done solely as a written test because the purpose of the test is to ascertain whether someone can actually drive a heavy goods vehicle.
The 2008 Code has some further examples at para 8.20 which deals with the reasonable adjustment duty. These include one example where an adjustment to an interpreter exam would (in contrast to the above example) be reasonable:
A woman with a mental health problem is informed that an oral examination for a diploma in interpreting and translation has been arranged for 8:30 am. The timing of the examination would substantially disadvantage the woman, because a side effect of her medication is extreme drowsiness for several hours after taking her morning dose – which prevents her from concentrating well. The qualifications body agrees to her request to take the examination later in the day.
A woman with a learning disability is allowed extra time by a qualifications body to take a written examination. This is likely to be a reasonable adjustment for the qualifications body to make, because the trade which the woman wants to enter would not require written work to be done in a short amount of time, so the ability to write quickly is not a competence standard.
A disabled man asks for twice as much time for a test in shorthand because his disability makes it impossible for him to write quickly. This is unlikely to be a reasonable adjustment for the qualifications body to make, because speed is an essential element of the shorthand qualification – in other words, it is likely to be a competence standard, and thus the duty to make reasonable adjustments does not apply.
For discussion of time limits, see above Time limits in professional exams.
Technical note: EU law?
There is no particular exception for “competence standards” in the EU Framework Employment Directive, which probably covers professional exams. This may perhaps be helpful to claimants even after Brexit. However that would need to be thought through, and I don’t consider it further here.