Facts
This is a made-up example, to illustrate how the law might apply to a particular situation:
A student studying history at university is required to give an assessed presentation. The student has a stammer which meets the EqA definition of disability. The student asks for adjustments and other steps to avoid unlawful discrimination regarding their stammer. The university’s assessment criteria for the presentation include oral fluency and lack of hesitation. The university refuses to change these criteria, saying its academic standards cannot be altered. It does agree to allow the student 25% extra time for the oral presentation, though the student says this is not enough. It refuses to allow the student to give the presentation in writing instead.
There is considerable uncertainty due to the lack of case law on this area. However I suggest below what seems to me a likely legal analysis. One particular point is that EqA rights may be subject to the Curriculum defence, but I would argue this defence does not apply where someone has difficulty with an assessment due to their disability, and I assume on this page that it does not apply.
Summary
In summary, there seems likely to be a breach of s.15 (discrimination arising from disability) and s.19 (indirect discrimination). Whether there is a breach for not allowing enough extra time would depend on whether the student does need more. There also seems likely to be a failure to make reasonable adjustments (s.20) except so far as the university can successfully argue its requirements are, or are required by, its “competence standards”.
For further adjustments that could be helpful see Oral exams and assessed presentations, including adjustments>Examples. The law is discussed further at Oral assessments at university: the rules.
S.15: Discrimination arising from disability
There is a breach of s.15 EqA (discrimination arising from disability) if, broadly, the university treats the disabled student unfavourably “because of something arising in consequence of” the disability, unless the university shows the treatment was justified: Oral assessments at university: the rules>Discrimination arising from disability (s.15). There may be several ways to analyse this. However one is that the student has been marked down (unfavourable treatment) because of various things which arose in consequence of his stammer. As to whether just being marked down is unfavourable treatment if one still gets the same grade etc, see Oral assessments at university: the rules>S.15: Wide scope. The things arising in consequence of the stammer (the reasons for being marked down) could be:
- the dysfluencies, including hesitations, according to the university’s assessment criteria,
- any lack of content because the student’s stammer did not allow the student to say everything they wanted within the time allowed (whereas a fluent person would have been able to say it),
- perhaps other effects of the stammer if they affected the student’s mark, such as fillers (“um”, “well”, “you see”) and circumlocutions or indeed not saying so much, through trying not to stammer.
Assuming the university did in fact mark the student down for any of those things (and had actual or constructive knowledge of the disability, below), the student should have a claim under s.15 EqA unless the university shows that marking the student down was a proportionate means of achieving a legitimate aim (justification). This would involve a balancing exercise by the County Court. The court would consider particularly how important the university’s aim was, could it have been achieved by alternative less discriminatory means, and does the aim outweigh the discriminatory effects on the disabled claimant: Oral assessments at university: the rules>Key points on justification under ss.15 and 19. I consider below justification for points 1, 2 and 3 above.
S.15: Point 1: Assessment criteria for oral fluency and lack of hesitation
I suggest the university would have great difficulty showing that marking the student down under assessment criteria for oral fluency and lack of hesitation is justified. The obvious thing the university is justified in assessing is the student’s knowledge of history.
- I suggest that in a history degree (and in most other degrees) the university is unlikely to be able to justify assessing oral presentation skills anyway, given the adverse effect on people with speech impairments and the lack of a good reason to do so.
- But it would have even greater difficulty here given it is equating oral presentation skills with eg lack of hesitation. A person who stammers may communicate excellently but with a stammer.
- (Also the university’s aim here may possibly not even be a “legitimate” aim, on the grounds it is inherently discriminatory: below S.13: Direct discrimination?)
Say the university had allowed the student to do the assessment in writing but – given its marking system – had thereby deprived the student of marks for oral skills, such as fluency and lack of hesitation. Again s.15 seems likely to apply. There appears to be the requisite causal connection with the stammer. The student did the written presentation because of the stammer and was marked down as a result. Again it is likely to be unjustified.
Note: The reasonable adjustment duty does not apply to what competence standards can be assessed: see below Reasonable adjustments: Assessment criteria. However nothing excludes s.15 EqA from applying to competence standards, except in the case of professional exam bodies, below.
S.15: Point 2: Being marked down for saying less due to lack of time
There is the question of fact whether the 25% time extension did allow the student to say as much as a fluent person. If it did, the university might argue that at least as regards the time limit, any lower mark had no causal connection with the stammer. If it did not and the student was marked down as a result of saying less (a consequence of his stammer), again it would be for the university to show why this was a proportionate means of achieving a legitimate aim. If saying less was due to the stammer, it is difficult to think what justification the university could legitimately propose. The university might possibly seek to argue it had sufficiently good reason, after reasonable enquiries, to think 25% would be enough. However it is far from clear this is legally relevant: Knowledge of causal link with disability under s.15 EqA. Even if it is relevant, and factually correct, it could be argued this does not justify cutting short a presentation where it is apparent the student with a stammer is taking (more than 25%) longer than a fluent student would take to say the same amount.
S.15: Point 3: Fillers, circumlocutions, avoiding saying things etc
What of other effects of the stammer, such as fillers (“um”, “well”, “you see”), circumlocutions, or indeed saying less (even if given more time) through trying not to stammer?
It seems the university could be liable under s.15 even if it did not know these were due to the stammer: Knowledge of causal link with disability under s.15 EqA. It would again be for the university to show justification. One factor is whether the university’s aim could have been attained by alternative means. In all likelihood its aim so far as proportionate – assessing knowledge of history? – could have been achieved through a written presentation, as the student requested, which would have avoided those effects of the stammer.
(It may or not may have been possible to achieve the aim through adjusting the marking of the oral presentation to exclude those effects, and perhaps allowing the student some time after the presentation to write anything the student was unable to say.)
S.15: Knowledge of disability
The student here asked for adjustments related to their stammer (and one or more university staff probably knew of the stammer before then anyway). In all likelihood the university will have if not actual then at least constructive knowledge of facts making the stammer a disability within the EqA. Constructive knowledge is what the university would have known had it make enquiries it could reasonably be expected to make. See Universities: Knowledge of disability>Discrimination arising from disability.
It is arguable that the student is not required to meet the cost of any medical evidence required by the university: Universities; Knowledge of disability>Cost of medical evidence.
Reasonable adjustments
Reasonable adjustments: Assessment criteria
The reasonable adjustment duty on universities does not apply if the provision, criterion or practice (PCP) putting people with the particular type of disability at a disadvantage is the application of a competence standard (EqA Sch 13 para 4(2)). Para 4(3) defines a competence standard 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”. See Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards”.
The university may be able to argue successfully that the assessment criteria are competence standards, or are necessary to assess competence standards (perhaps in its learning outcomes), so that the reasonable adjustment duty does not apply to them. However there is still a potential claim in respect of the assessment criteria under s.15 (above) and s.19 (below).
(If these assessment criteria are not excepted as competence standards, I suggest an adjustment to them is likely to be reasonable for the reasons given above: S.15: Point 1: Assessment criteria for oral fluency and lack of hesitation.)
Reasonable adjustments: Extra time
Extra time: PCP
A claimant needs to show there is a provision, criterion or practice (PCP) putting people with the particular disability at a more than minor or trivial disadvantage (below Extra time: Applying the reasonable adjustment duty). The PCP here would be – something like – the requirement to complete the oral presentation within x minutes, without any extension of time. This is because the PCP is taken without any adjustments. Adjustments actually made are not relevant until the court considers what adjustments it would be reasonable for the university to have to make, and so whether the adjustments it made go far enough: Reasonable adjustments by service providers>Whether there is a disadvantage is decided ignoring any adjustments actually made.
Extra time: Competence standard?
That PCP is unlikely to be a competence standard (above) in this context, and so is likely to be subject to the reasonable adjustment duty. This is even more so as the university in fact agreed some adjustment of it.
At most the university might be able to argue it wishes to apply a competence standard of students being able to communicate orally under time pressure. Burke v College of Law and SRA indicated this may be different from saying the time limit itself is a competence standard: Oral assessments at university: the rules>Competence standards: Time limits. If so, the reasonable adjustment duty could still apply to the time limit itself, at least to the extent that adjustments are consistent with whatever competence standards there are.
What if the time limit, or ability to communicate orally under time pressure, is a competence standard? Either competence standard would almost certainly be unjustified under ss.15 above and 19 below. Arguably unlawfulness under s.19 at least may mean the reasonable adjustment duty is not excluded: Oral assessments at university: the rules>Is reasonable adjustment duty excluded by an unlawful competence standard? But even if the reasonable adjustment duty is excluded, there should be a claim under s.15 and/or s.19.
The following assumes the time limit is a not competence standard or constrained by a competence standard on oral skills.
Extra time: Applying the reasonable adjustment duty
Universities have an anticipatory duty to make reasonable adjustments for students: Oral assessments at university: the rules>Reasonable adjustment duty (s.20). Universities should consider in advance what adjustments students with different types of disability may reasonably require, and put them in place. For students with speech impairments, including stammering, I suggest obvious adjustments include arrangements for extra time where needed and/or doing presentations in writing rather than orally.
The student would need to show that the provision, criterion or practice (PCP) without adjustments (see above Extra time: PCP) – broadly the requirement to do an oral presentation within x minutes with no extension of time – put people with the particular disability at a more than minor or trivial disadvantage compared with non-disabled people: Reasonable adjustments by service providers>Comparative disadvantage. That should not be difficult, though expert evidence may be helpful to show the group disadvantage, if disputed, as discussed at Indirect discrimination>Are people who stammer more likely to be disadvantaged? The particular kind of disability is not clear (eg stammering?), but should not matter as there is no need for all people with that disability to be disadvantaged.
The burden of proof then shifts to the university to show the court that the adjustments proposed by the student are not reasonable. The aim of the reasonable adjustment is to avoid the (more than minor or trivial) disadvantage to students with the disability. So on the face of it, if the student was arguing for, say, a 40% time extension, it would be for the university to show that the 25% it provided was enough to avoid the disadvantage, or that other sufficiently cogent reasons meant it was reasonable to limit the extension to 25%. (There is some uncertainty on the exact test because the legislation refers to disabled people rather than the individual disabled person – see eg University and FE: the rules>Ad hoc adjustments and individual circumstances? However even looking at the duty as anticipatory rather than focused on the individual, it might be argued that under its anticipatory duty the university should have put in place reasonable adjustments to avoid this disadvantage to disabled students, including the claimant, and that it would be reasonable for these to allow flexibility according to different students’ needs.)
Reasonable adjustments: Presentation in writing
As with extra time for an oral presentation (above), the student is likely to be able to show that the PCP with no adjustments – broadly the requirement to do an oral presentation within the normal time – puts people with the particular disability at a comparative disadvantage. So the burden of proof shifts to the university to show the proposed adjustment was not reasonable.
The university may possibly argue it is seeking to assess oral presentation skills, and this cannot be done by a written presentation. Again I suggest this would be very difficult for the university to justify in the context of a history degree, under ss.15 above and 19 below. But would the university be able to argue that even an unjustified competence standard (above) is excluded from the reasonable adjustment duty? Possibly, but that is unclear. Arguably unlawfulness under s.19 at least may mean the reasonable adjustment duty is not excluded: Oral assessments at university: the rules>Is reasonable adjustment duty excluded by an unlawful competence standard? But even if the reasonable adjustment duty is excluded, there should be a claim under s.15 and/or s.19.
Reasonable adjustments: Knowledge of disability
The university has no express defence in the Equality Act for not knowing of the student’s disability or need for adjustments. The position is unclear. However the university may not be liable if it would not have known of the disability and need for adjustments even if it had taken all reasonable steps to find out: see Universities; Knowledge of disability>Reasonable adjustments>Treating disabled student differently, included the assessed presentation example there.
In this example though, the student has asked for adjustments in respect of their stammer, so the university has a lot of knowledge, and (in my view) should make any further enquiries that are reasonable. It may be prudent though for the student to particularly ensure the university knows in what ways the effects of their particular stammer mean the normal exam arrangements will put them at a disadvantage.
It is arguable that the student is not required to meet the cost of any medical evidence required by the university: Universities; Knowledge of disability>Cost of medical evidence.
Reasonable adjustments: Detriment
To claim for reasonable adjustments, the student probably has to show that they as an individual suffered a detriment, or at least there was a real prospect they would suffer a disadvantage. The precise test is unclear, but is unlikely normally to be a problem in this context. See Oral assessments at university: the rules>Reasonable adjustments: Detriment.
S.19: Indirect discrimination
The university may be liable for indirect discrimination contrary to s.19 EqA if, broadly, it applies a provision, criterion or practice (PCP) 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. However the university has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim (justification). See Oral assessments at university: the rules>Indirect discrimination (s.19).
There seem to be various possible PCPs here, including:
- The assessment criteria of oral fluency and lack of hesitation
- Assessing whether the student can complete the presentation orally within the fixed time or under time pressure, especially in the unlikely event the university is successful in arguing that this is a competence standard (above) not subject to the reasonable adjustment duty
- Assessing the student’s oral presentation skills and insisting that the presentation be oral without the option of it being in writing, again especially if the university is successful in arguing that this is a competence standard not subject to the reasonable adjustment duty.
What about comparative disadvantage? Similarly to Extra time: Applying the reasonable adjustment duty above, the student is unlikely to have a problem showing the PCPs put people with his disability (and himself) at a particular disadvantage compared with others, but again expert evidence may be helpful. And again how to identify the particular disability is unclear, but this should not matter as the test seems to be just whether the proportion of people with that disability – say people who stammer – who are disadvantaged by the PCP is greater (perhaps significantly greater) than the proportion of people who don’t have that disability who are disadvantaged: Indirect discrimination>Are people who stammer more likely to be disadvantaged?
Broadly speaking, if that comparative disadvantage is shown, then the PCPs are unlawful under s.19 unless the university can show they are justified. The justification test is similar to that for s.15 above, but it is the PCP rather than the marking down which has to be a proportionate means of achieving a legitimate aim. So unlike with s.15:
- the court may not be looking at whether the university was justified in refusing to make an exception for the claimant (as in City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey), and
- the court may focus on the disadvantage to people with the same disability rather than the disadvantage to the particular claimant. However doubtless evidence of the disadvantage to the individual claimant will be relevant.
On both bullet points see Group test for objective justification of indirect discrimination?
As to assessing whether the each PCP is justified:
- The assessment criteria of oral fluency and lack of hesitation seem very difficult for the university to justify, especially in a history degree where one would expect the student to be assessed instead on history: above S.15: Point 1: Assessment criteria for oral fluency and lack of hesitation. (That is the main point. However also, as discussed in S.13: Direct discrimination? below, these criteria may possibly be illegitimate anyway as being directly discriminatory.)
- As regards assessing the student orally with no written option, and assessing oral ability to complete the presentation within the fixed time or under time pressure, again those PCPs seem very difficult for the university to justify in a history degree where one would expect the student to be assessed instead on history, as discussed above.
In assessing justification there would be a balancing exercise by the County Court. The court would consider particularly how important the university’s aim was, could it have been achieved by alternative less discriminatory means, and does the aim outweigh the discriminatory effects on people with the relevant type of disability: Oral assessments at university: the rules>Key points on justification under ss.15 and 19.
S.13: Direct discrimination?
Direct discrimination – being treated less favourably because of the stammer rather than because of one’s abilities – is generally quite a difficult claim to make. A court may be slow to uphold a claim in this type of case because there is no justification defence. The university has no opportunity to try and justify its assessment criteria etc.
However there is a possible argument, in the light of an example in the 2007 Code of Practice, that (a) assessing fluency and lack of hesitation is unlawful as direct discrimination, and (b) this also contaminates the university’s defence to other EqA claims. However a court would not necessarily agree! See Oral assessment at university: the rules>Direct discrimination.
Professional exam bodies
This example does not involve a professional exam body (Professional exam bodies). If it were a claim against a professional exam body:
- As regards any competence standard the only claim would for indirect discrimination under s.19, by virtue of s.53(7) EqA.
- Depending on the requirements of the relevant profession, it will in some cases be easier to justify insisting on oral assessments and tighter time limits for them.
