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Universities: Knowledge of disability

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Last updated 27th October 2021.

If you tell the employer about your stammer, can the employer require medical or other evidence before making a reasonable adjustment?

Summary

  • For a claim under s.15 EqA, the university has a defence if it did not of the disability and could not reasonably be expected to know. But it need not know that the reason it treated the student unfavourably was due to the stammer. Below Discrimination arising from disability.
  • For a reasonable adjustment claim by a student, the legislation does not give the university any defence for lack of knowledge. But the courts may allow some defence for a university which acts reasonably. Below Reasonable adjustments.
  • As to whether a university can require medical evidence (below), that may perhaps be legitimate in some cases so far as reasonable. In practice, if the university does want to make further enquiries, I would suggest co-operating.

What this page covers

This page deals with knowledge of disability and possible evidence requirements in relation to a university’s Equality Act duties to its own students. Also as regards exams or assessments, this page only includes the university’s own exams/assessments. In particular:

  • There are separate rules for professional qualification bodies.
  • The university’s reasonable adjustment duty to non-students taking its exams has technical differences from what is discussed on this page.
  • I assume (as seems to be the general view) that for students it is the anticipatory reasonable adjustment duty that applies, including for exams and assessments.

This page focuses on universities but the position should be the same for other higher and further education providers.

Reasonable adjustments

For the right to reasonable adjustments in favour of students, the Equality Act does not set out any exception if the university is unaware of the disability. It is unclear how far knowledge of the university is relevant, except for the specific provision on confidentiality requests, below.

The Equality Act provisions applying to universities are essentially the same as those for service providers (except for competence standards), and I discuss them in relation to service providers: Reasonable adjustment on service providers>Knowledge of the disability. There in summary I suggest that a possible approach the courts may take is as follows, without trying to cover every situation:

  • If an adjustment should reasonably be applied to all students etc even without knowing of a particular disabled person, the university can be liable even without being aware of the individual’s disability, or even of the individual.
  • On the other hand, so far as the adjustment requires the disabled student etc to be treated differently from others, it seems to make sense that the university is not liable if it did not know of the disability and could not reasonably be expected to know of it.

A court held the UK government had to provide BSL interpretation for UK government Coronavirus press briefings, even without knowing about the particular disabled claimant: R (Rowley) v Minister for the Cabinet Office, 2021. A possible example in relation to stammering:

Example: After considering its anticipatory reasonable adjustment duty towards students with speech impairments, a university gives lecture and seminar participants generally options to participate and ask questions in writing, such as through sli.do.

Note: Is it reasonable for a university to have to do this (and so be obliged to make the adjustment) even without having reason to think a student in the particular lecture or seminar needs it? That would be for a court to decide. One argument in favour of universal provision of these options might be that many people are sensitive about their stammer, try to hide it and are reluctant to talk about it.

Often through adjustments will involve treating people who stammer differently from others, in which case I suggest (as discussed at the link above) a court is likely to take into account whether the university knew or could reasonably have been expected to know of the disability.

Example: A student who stammers needs extra time for an assessed presentation to put them on a level playing field. In the case university staff will presumably have been able to hear the student stammering in presentations anyway, so there should be no issue of the university having a defence for lack of knowledge. Also in practice the student may well ask for extra time, saying it is because of the stammer, so the university also has knowledge in that way.

Confidentiality requests

There is a special rule on reasonable adjustments to deal with “confidentiality requests”. This is where the disabled person or their parent has made a request for the nature or existence of the disability to be treated as confidential. In deciding whether an adjustment is reasonable, the institution (and doubtless a court) must have regard to the extent to which the adjustment is consistent with complying with the request (EqA Sch 13 para 8, and Technical guidance for further and higher education para 7.28-7.30).

Example: A university student has a covert stammer. She swaps words and uses avoidance (eg often not speaking up in tutorials) so most people do not realise she has a stammer. With encouragement from a speech and language therapist she has now talked about it with the university’s disability office, and she is telling some close friends. She is willing for tutors to know, but at the moment does not want fellow students generally to know about it. This may place some limitations on adjustments the university can make. However, the university should so far as possible make reasonable adjustments consistent with the student’s request for confidentiality.

If she did not want tutors to know of the stammer, the constraints on possible adjustments would likely be greater.

Discrimination arising from disability

This is the claim under s.15 EqA. A disabled student etc has a claim if – briefly – the university treats them unfavourably “because of something arising in consequence of” the disability, unless the university shows the unfavourable treatment was justified. However as discussed on Knowledge of disability, the university has a defence if it did not know and could not reasonably be expected to know that the person has a disability. In summary

Another important point is that that if the university knew (or could reasonably be expected to know) of the disability, it does not need to know of the causal link between the disability and the reason for the unfavourable treatment: Knowledge of causal link with disability under s.15 EqA.

Example: It seems that if the university knew of the stammer (or could reasonably be expected to know of it), a student could claim under s.15 for being marked down as a result of substituting words and phrases, so they sound like they are circumlocuting or not using the appropriate technical words. The university would have a defence if it could show justification. However it seems it would not be a defence that the university did not know and could not be expected to know that the circumlocutionn etc resulted from the stammer.

Indirect discrimination

See Knowledge of disability>Indirect discrimination.

Is medical evidence required?

In an employment context, the courts have held that an employer does not necessarily have to just take someone’s word that they have a disability: see Cox v Essex County Fire and Rescue on Employer requiring medical evidence for reasonable adjustment?>So is medical evidence required?

In the case of a claim for discrimination arising from disability (above) under s.15 EqA, the university has a defence it if did not know of the disability and could not reasonably be expected to know of it, as discussed at that link. For example (assuming it is not justified) the student can challenge being marked down under assessment criteria relating to “fluency” or “lack of hesitation” – or otherwise due to effects of the stammer – unless the university did not have that actual or constructive knowledge of the disability. On the facts it may be evident to university staff that the stammer has a long-term and more than minor or trivial adverse effect on normal day-to-day activities. If so, presumably no further evidence is required for a s.15 claim to arise.

In the case of claim for reasonable adjustments (above), the starting point is that the legislation does not actually give the university any defence for lack of knowledge. But as discussed at that link, if an adjustment involves doing something differently because of the disability, the courts may well allow some kind of defence for lack of knowledge. They may go on the basis of what steps it would be reasonable to take to find out about and (if reasonably necessary) get some professional confirmation of the disability and what adjustments are required.

Example: A student who stammers wants extra time for an assessed oral presentation.

It may be possible for a university to argue it is reasonable for them to insist on the student being assessed by a speech and language therapist specialising in stammering, arranged and paid for by the university, to get a professional view on whether the adjustment is required. There again, university staff may well have seen the student giving presentations with a stammer and have a good idea from those – quite possibly better than the professional who may see the individual only in the clinic or on Zoom – of need for the adjustment and how much extra time would remove the disadvantage.

I suggest it would not be reasonable for the university to insist on getting a letter from the student’s GP certifying what adjustments are required. Normally GPs do not know much about stammering.

In any event, if the university does want to make further enquiries, I would suggest co-operating. As mentioned there, an example could be the university arranging for the individual to be assessed by a speech and language therapist – preferably one specialising in stammering – at the university’s expense. (A speech and language therapist will know much more about stammering than a GP.) In an employment context, tribunals have been understandably more likely to find against a claimant who has not co-operated with the employer’s investigation, and the same may well apply in a university context. But at least if the stammer is evident, actually and legally the university may well know of the disability and its relevant effects even before the investigation. So the university may not be justified in delaying adjustments.

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