How far can a university defend an Equality Act claim on the basis it did not know about the stammer? And what if they try to insist on medical evidence?
Summary
- For a claim under s.15 EqA, discrimination arising from disability, the university has a defence if it did not know 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 a consequence of 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 accept a university is not liable if it takes whatever steps are reasonable to find out about disabilities, unless the adjustment is one that should be applied universally. 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. I suggest the university will probably be required to bear the cost (below) of any medical evidence it requires.
- The EHRC’s Technical guidance para 7.22 points to a good practice guide published by the then DfES: Finding Out About People’s Disabilities: A Good Practice Guide for Further and Higher Education Institutions (DfES/0023/2002) (dera.ioe.ac.uk).
Whatever the legal position, if you want a reasonable adjustment, for example, in practice it is obviously sensible to make sure the university knows about the stammer, what the difficulties are, and if possible what adjustments you would like.
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. 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 reasonable adjustment duty a university owes to non-students taking its exams has some differences from what is discussed on this page.
- I assume (as seems to be the general view) that for the university’s own students taking its exams and assessments, it is the anticipatory reasonable adjustment duty that applies rather than the individual-based duty.
This page focuses on universities, but the position should be the same for other higher and further education providers.
Reasonable adjustments
For a student’s right to reasonable adjustments, the Equality Act does not set out any defence if the university is unaware of the disability. It is unclear how far knowledge of the university is relevant, except for a specific provision on confidentiality requests, below. It remains to be seen what approach the courts take.
The reasonable adjustment provisions applying to universities are essentially the same as those for service providers (except for competence standards). I discuss them in relation to service providers at Knowledge of disability in anticipatory reasonable adjustment claims. Although the position is unclear, at that link I suggest roughly the following approach, 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. Below Applying an adjustment to all students.
- However 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. The same applies if the adjustment involves dealing differently with a group of people (such as a seminar group) one of whom has the disability, if it is not reasonable to have to deal with all groups in that way. Below Treating disabled student differently.
The County Court in Abrahart (below), 2022, did discuss knowledge of the university, but for reasons set out at that link I do not see the case as very useful on issues of knowledge.
Applying an adjustment to all students
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: In setting up an Open Day for prospective students, a university makes sure attendees can participate and get their questions answered without having to speak in front of a group of people. The university does this even without knowing of any particular attendees with speech impairments.
See Examples of adjustments for university students>Admission>Open days.
I think there is quite a strong argument that a university should do this, even without knowing of any particular attendee with a speech impairment. Before someone becomes a student, there is a particularly high risk that the university will not know of the disability, even if it has asked attendees in advance.
What about the following?
Example: After considering its anticipatory reasonable adjustment duty towards students with speech impairments, a university department introduces Padlet in all lectures. This tool for electronic engagement can be used by students to ask questions throughout the session, thereby improving the experience for everyone, including students with speech impairments.
Note: There are many other possible adjustments: Examples of adjustments for university students>Teaching sessions, tutorials, group work.
Is it reasonable for a university to have to introduce this or another method to allow non-oral questions (so it is obliged to make the adjustment), even without having reason to think a particular student in that lecture has a relevant disability? That would be for a court to decide. One argument to be weighed in the balance in deciding whether universal provision of this type of option is a reasonable adjustment to have to make is that many people are sensitive about their stammer, try to hide it and are reluctant to talk about it.
Treating disabled student differently
Often though adjustments will involve treating people who stammer differently from others. Or adjustments might involve dealing differently with a group of people – such as a seminar group – one of whom has the disability, if it is not reasonable to have to deal with all groups in that way.
The EHRC Technical guidance (below) says:
7.22 An education provider should do all it can reasonably be expected to do to find out whether a student is disabled and requires reasonable adjustments. The action that it is appropriate to take to find out about a student’s disability may differ between different types of provision.
Where the adjustment requires people to be treated differently, I suggest – as discussed at Knowledge of disability in anticipatory reasonable adjustment claims and as stated in that Technical guidance – that a court is likely to look at whether the university knew of the disability and (if it did not know) has taken all reasonable steps to find out about any disabilities and how far adjustments are required. Where the court is looking at the duty in an anticipatory way, it is logical for this to be part of the court considering what arrangements for adjustments it is reasonable for the university to have set up in advance. Steps to find out about students’ disabilities are part of the steps that universities are should reasonably take. See too Examples of adjustments for university students>Finding out about stammer and need for adjustments.
Example: A student who stammers needs extra time for an assessed presentation to put her on a level playing field. University staff are likely to have been able to hear the student stammering in presentations or seminars anyway, so there should be no issue of the university not knowing of the disability or the need for an adjustment. This is especially so if the disabled student has pointed out the difficulty that they face, or has suggested a reasonable solution to that difficulty.
Looking at the reasonable adjustment duty in an anticipatory way, if the university’s procedures do not trigger a requirement to take sufficient steps in these circumstances (including making any appropriate enquires), the procedures are likely to be unreasonable, and so in breach of the reasonable adjustment duty.
Looking at the duty in a more ad hoc (below) way, again the university is likely to have sufficient knowledge here to make it reasonable for it to have to take action. Note that para 7.25 of the EHRC’s Technical guidance (below) says that once an education provider has become aware of the requirements of a particular disabled student, it might be reasonable to take steps even if it would not have been reasonable to put arrangments in place in advance.
Note: Even if the stammer was not obvious, note that according to para 7.22 of the Technical Guidance quoted above an education provider should do all it can reasonably be expected to do to find out whether a student is disabled and requires reasonable adjustments. It seems right that this is part of the arrangements a university should reasonably have to set up.
Abrahart case
The County Court in Abrahart v University of Bristol, 2022, talked about knowledge of the university. It said the university must have actual or constructive notice of the student’s disability (which two staff did in that case), that the duty to support the student arose at the point of disclosure (rather than when the university’s Disability Service made recommendations), and referred to the Tarbuck case as regards the university – after it knew the student had a disability – not being able to rely on lack of knowledge to make reasonable adjustments.
However, except for the Tarbuck point, the County Court decision did not give legal reasoning for this. For example, it did not engage with the fact that the university has no express defence to the reasonable adjustment duty for lack of knowledge. Those involved may have assumed that the statutory provisions were the same as those for employers. Coupled with the fact that this is only a County Court decision, I do not see it as very useful in deciding what the legal position is on knowledge.
Confidentiality requests
There is a special statutory provision 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, discussed in 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 her stammer. 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.
Ad hoc adjustments
Ad hoc reasonable adjustments by service providers, education providers etc are a difficult area. On knowledge of disability as regards ad hoc adjustments, see Knowledge of disability>Ad hoc adjustments.
Note that para 7.25 of the EHRC’s Technical guidance (below) says that once an education provider has become aware of the requirements of a particular disabled student, it might be reasonable to take steps even if it would not have been reasonable to put arrangments in place in advance. This seems to support the argument that there is an obligation to make ad hoc adjustments.
Discrimination arising from disability
A disabled student etc has a claim under s.15 EqA 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: see University and FE: the rules>Discrimation arising from disability and Oral assessments at university: the rules>Discrimination arising from disability.
However as discussed in detail on Knowledge of disability, the university has a defence if it did not know and could not reasonably be expected to know that the student etc has a disability. In summary:
- Knowledge of any member of university staff – in that capacity – should usually be enough to mean the university has knowledge: para 6.17 of the Technical guidance on further and higher education. The example in para 6.17 is quoted below.
- The university must do all it can reasonably be expected to do to find out whether the student etc has a disability.
- The knowledge may be actual or “constructive”, ie what the university would have found out if it had made reasonable enquiries.
- The knowledge required is of the facts of the disability – broadly that there is an impairment with a long-term and more than minor or trivial adverse effect on normal day-to-day activities (Gallop v Newport City Council, Knowledge of disability>Knowledge of facts of the disability, rather than law).
- In deciding whether there is an “impairment”, the focus is on its effects – there need not be a medical diagnosis: Walker v Sita, Stammering starting in adulthood>Impairment.
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: In an oral assessment, a student chooses words and phrases he can say without stammering, so it sounds like he is sometimes circumlocuting, and not using technical terms he is expected to use. He is marked down for this.
The university is treating the student unfavourably “because of something arising in consequence of” the disability, under s.15 EqA. Assuming the university knows (or could reasonably be expected to know) of the disability, it is no defence that university staff did not know that the circumlocution etc resulted from the stammer.
However the university would have a defence under s.15 if it shows that marking the student down was a proportionate means of achieving a legitimate aim (justification). The possibility of assessing relevant competences in writing instead, for example, is likely to be relevant there.
An example in the Technical Guidance illustrates the point that knowledge of the disability by one of an education provider’s employees or agents (in that capacity) is usually enough, and that the education provider does not need to realise the effects of the disability:
Example: A student has just enrolled at his local community college to do a course in local history. He has chronic heart disease and finds walking up stairs and for long distances tiring. He tells one of the administrators this when he is enrolling, but she does not realise that this will impact on his ability to go to classes at the top of the building or at the college campus on the other side of town. He is allocated to classes which are on the third floor of the college and he finds these classrooms very difficult to access. As a member of college staff is aware of his disability the college would not be able to claim that it did not know he had a disability and therefore cannot avoid liability for any discrimination arising from his disability.
Para 6.17 of the Technical guidance, 2014
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 if it shows it did not know of the disability and could not reasonably be expected to know of it, as discussed at that link. For example (assuming the university cannot show justification) 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 shows it 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 a 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, as part of considering what steps are reasonable for the university to have to take. Particularly if effects of the disability are not evident, to be fair to other students and to maintain exam standards a university may be able to argue they need expert input to help decide what adjustments are reasonable.
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. Professional input may be more justified if a stammer is covert and/or the student wants adjustments for hidden effects of the stammer.
I suggest it is unlikely to 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 understandably been 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 for s.15, and arguably in terms of what adjustment is “reasonable, the university may not be justified in making adjustments conditional on expert input.
Cost of medical evidence
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 student need not pay the costs of a report from a speech and language therapist, for example, if the university insists on one as condition of making the adjustment, even if the insistence is reasonable. However that is not clear.
In any event, for both reasonable adjustments and s.15 claims, I suggest a court is likely to find it is not reasonable for the university to insist on medical evidence for which the disabled student has to pay. It would mean the student effectively has to pay in order to get reasonable adjustments. I suggest a court is likely to find the university must pay for this.
See too Reasonable adjustments by service providers>Cost of reasonable adjustments.
Also Professional exams>Does the individual have to pay for medical evidence? – but the underlying legislation there is rather different. Even on reasonable adjustments, the legislation for professional qualifications bodies expressly talks about knowledge and what the body could reasonably be expected to know.
Technical guidance
On knowledge of the disability, the EHRC’s Technical guidance on further and higher education reads as follows:
Does the duty to make reasonable adjustments apply even if the education provider does not know that the person is disabled?
7.21 Because there is a duty to disabled students generally, it applies regardless of whether the education provider knows that a particular person is disabled or whether it currently has disabled students.
7.22 An education provider should do all it can reasonably be expected to do to find out whether a student is disabled and requires reasonable adjustments. The action that it is appropriate to take to find out about a student’s disability may differ between different types of provision.
(Guidance is available on the reasonable action an education provider should take to find out about people’s disabilities. ‘Finding Out About People’s Disabilities: A Good Practice Guide for Further and Higher Education Institutions’ (DfES/0023/2002) [link added to dera.ioe.ac.uk] England only or guidance from the Equality Challenge Unit for example www.ecu.ac.uk/publications/evidencing-equality-approaches-to-increasing-disclosure-and-take-up-of-disabled-students-allowance [seems to be no longer online].Must education providers anticipate every barrier?
7.23 Education providers are not expected to anticipate the needs of every prospective student, but they are required to think about and take reasonable steps to overcome barriers that may impede people with different kinds of disability. For example, people with learning difficulties, mental health conditions or mobility impairments may face different types of barriers.
7.24 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using education facilities with a ‘no dogs’ policy, whereas visually impaired people who use white canes will not be affected by this policy. The duty will still be owed to members of both groups.
7.25 Once an education provider has become aware of the requirements of a particular disabled student it might then be reasonable for the education provider to take a particular step to meet these requirements. This is especially so where a disabled student has pointed out the difficulty that they face or has suggested a reasonable solution to that difficulty.
Example: A university anticipates that some Deaf students will require the use of British Sign Language (BSL) interpreters and ensures it has access to BSL interpreters at short notice. However, a student who arrives at the university uses American Sign Language (ASL) and had not previously notified the university of this. As soon as the university is aware of this it should consider making the necessary reasonable adjustment by seeking an ASL interpreter, even though it may not have been reasonable to have arrangements with an ASL interpreter before the student arrives.
This is largely similar to the Services Code of Practice: see Reasonable adjustments by service providers>Services Code on the “anticipatory” reasonable adjustment duty, apart from para 7.22 above which says an education provider should do all it can reasonably be expected to do to find out whether a student is disabled and requires reasonable adjustments. This compares with 7.23 of the Services Code which just says that when disabled customers request services, the service provider must already have taken all reasonable steps to ensure that they can be served. However the legal principles applying in each case are not likely to be different. I have a separate page on knowledge of disability on the part of service providers.
