There was held to be a failure to make reasonable adjustments for a professional exam. This was so even though the claimant had not identified the particular adjustment at the time of the exam. However a potentially reasonable adjustment, or at least its broad nature, should be identified by the time of the hearing. It is then for the employer etc to show the adjustment is not reasonable. Here the relevant adjustment had been put forward by the claimant’s lawyer at the hearing.
Employment Appeal Tribunal (EAT), 2007. Full judgment www.bailii.org/uk/cases/UKEAT/2007/0028_07_1005.html
Facts
The claimant was registered blind. She requested reasonable adjustments for a professional exam. She asked that she be allowed to take the examination on her own laptop computer in the Examination Centre or, alternatively, that her screen reading software should be installed in the Examination Centre computer. She also asked for a reader to support her in order to explain diagrams.
The Institute granted her some adjustments. It allowed her a reader/recorder, and gave her twice the usual time to sit the examination. She was not, however, allowed to take in her own computer. She passed the examination, but nevertheless claimed for failure to make reasonable adjustments.
The employment tribunal held there was a failure to make reasonable adjustments. It rejected the adjustments previously proposed by the claimant but held in favour of one put forward by claimant’s lawyer at the hearing. This involved taking the exam on a stand-alone computer at a Test Centre, on to which computer the exam questions had been entered in Word format and screen reading software had been installed.
Held by the EAT: the tribunal decision was upheld. There was a breach of the duty to make reasonable adjustments.
Failure to carry out assessment
The tribunal had been wrong to say the Institute was under a legal duty to carry out a proper assessment: see the Tarbuck case on Reasonable adjustment rules: employment>Assessment consultation and trials.
However the EAT said the tribunal had found that the Institute “acted unreasonably in adopting an inflexible approach without adequately listening to what Ms Latif had to say. They also found – and this in our view is fundamental to their reasoning – that the proposed adjustment, or something like it, would have emerged had proper consultation occurred. In our judgment that was a sufficient basis on its own to justify its conclusion that there had been no reasonable adjustment in the circumstances of this case.”
The EAT said this was a good example of a situation envisaged by the EAT in Tarbuck (para 72), namely where a failure to carry out a proper assessment, although not a breach of the reasonable adjustment duty in its own right, may well result in a respondent failing to make adjustments which it ought reasonably to make. A respondent, be it an employer or qualifications body, could not rely on that omission as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified.
Did not matter that claimant had not suggested the adjustment at the time
The Institute argued the tribunal failed to give any weight to the fact that the claimant, a well-educated and articulate woman, had not herself been able to identify any appropriate adjustment beyond those taken by the Institute. The Institute accepted that there was no legal duty on her to do: Cosgrove v Caesar & Howie (bailii.org), EAT, 2001 and Reasonable adjustment rules: employment>Onus to comply is on the employer.
The EAT rejected this argument. The tribunal had specifically addressed the issue that the “stand-alone” computer suggestion was not raised by the claimant at the relevant time. (Also see above the tribunal’s finding that had the Institute listened carefully to what the claimant was requesting and conducted a proper assessment, such a scheme or something similar might reasonably be expected to have emerged.)
The EAT also says later, at para 52, that it agrees with the conclusion in Cosgrove.
Burden of proof – adjustment should be suggested no later than the hearing
The EAT considered the shift in burden of proof under s.136 EqA as regards the duty to make reasonable adjustments, once it has been established (below) that a provision, criterion or practice (PCP) places the claimant at a substantial disadvantage in comparison with non-disabled people.
The claimant argued that once the claimant has proved facts from which a PCP putting her at a substantial disadvantage could be inferred, it was for the Institute to show that there were no further or other steps that it could reasonably have taken to reduce or eliminate the disadvantage.
The EAT rejected this argument. It agreed with the employer that:
“by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent [ie employer] to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. [The claimant’s lawyer] is right to say that the respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable amendment has been identified.”
Para 55 of judgment
The claimant need only identify the “broad nature” of the proposed adjustment. The EAT explained:
“55. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.
… We accept … that the proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, as here, not even until the tribunal hearing…”
Even though the tribunal had been wrong in its approach to the burden of proof, its decision was upheld. The relevant adjustment had been put forward at the hearing. Therefore the tribunal would necessarily have reached the same conclusion if it had taken the correct approach.
The EAT also observed in passing
“…we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.”
My comment
This case is particularly important on the burden of proof. The Court of Appeal evidently agreed with it in Finnigan v Northumbria Police, 2013 where the court said at paragraph 38:
“It should also not be overlooked that, once a potential reasonable adjustment has been identified by the claimant, the burden of proving that such an adjustment was not a reasonable one to make shifts to the defendants: see Project Management Institute v Latif [2007] IRLR 579 at para 53…”
Link
- Computer-based exam discriminated against blind candidate (pinsentmasons.com) – on the tribunal decision rather than the appeal, but giving interesting further background.
