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Burke v College of Law and SRA

Court of Appeal, February 2012

The Court of Appeal upheld a decision that sufficient reasonable adjustments had been made for a student with multiple sclerosis taking a professional law exam. The issue of whether the time limit for the exam was a competence standard and therefore not subject to the reasonable adjustment duty did not have to be decided.

Facts

Adjustments the College agreed to make:
  • 60% extra time;
  • May hand write or use an amanuensis (who may also be required to act as a reader) or use a computer (to be supplied by the College);
  • Stop the clock limited to 15 minutes per hour or pro-rata (based on the extended time) to be taken as and when required;
  • Extra desk;
  • High backed chair with adjustable arms;
  • Own room;
  • Exam questions and any advance reading to be provided on cream coloured paper;
  • Exam room on ground floor or accessible by lift;
  • Exam timetable to be adjusted as per the schedule in the confidentiality agreement to split each examination paper into two parts (the examinations were split to ensure that none lasted for more than two hours);
  • Mr Burke to sign a confidentiality agreement in relation to any examination or part thereof which is thereby postponed;
  • Accommodation at the YMCA, Guildford throughout the exam period to be paid for by the College.
The case concerned adjustments to examinations at the end of the Legal Practice Course (LPC), at the College of Law in Guildford. The course and exams are part of the process of qualifying as a solicitor. There was evidence that rather than being an academic course, the LPC aimed to prepare students for practice as a Trainee Solicitor. Teaching methods and assessments in the LPC were designed to replicate transactional aspects and the day-to-day working life of a solicitor.

The student had multiple sclerosis, leading to stress, fatigue and tiredness. The College of Law made numerous adjustments to the LPC exams, for example 60% extra time, splitting each exam paper into two parts, rest periods, and paying for accommodation at the YMCA in Guildford to remove the stress and fatigue of the student having to travel from his home in Brighton (see list of adjustments in box). Even so, the student failed the exams.

The student claimed that sufficient reasonable adjustments had not been made. He argued that not enough extra time had been allowed, and that he should have been allowed to sit the exam at home.

He also contended that the College should have found better accommodation for him. This argument was considered to have no merit because the student had seen the accommodation in advance and had made no complaint about it during the course of his examinations.

Employment Appeal Tribunal (EAT) decision

The EAT upheld the Employment Tribunal decision that -

  1. the time requirement was a competence standard under s14A(5) Disability Discrimination Act, so the duty to make a reasonable adjustment did not apply to it; and
  2. in any event, adequate reasonable adjustments had been made.

The EAT mentions it had been decided by a previous tribunal at a previous hearing that both the College of Law and Solicitors Regulation Authority are qualifications bodies.

Court of Appeal decision

The Court of Appeal upheld the decision on the basis of 2 above, namely the Employment Tribunal had found that adequate reasonable adjustments were made, including to the time requirement. The Court of Appeal therefore did not consider whether the time requirement was a competence standard.

Time requirement as competence standard? (not decided by Court of Appeal)

If the time requirement were a competence standard, the reasonable adjustment duty would not apply to it (ss.14A-14B Disability Discrimination Act 1995).

Various arguments were put forward as to why the time requirement was a competence standard: 

In granting leave to appeal from the EAT to the Court of Appeal, Lewison LJ had decided -

Link to full Cout of Appeal decision: www.bailii.org/ew/cases/EWCA/Civ/2012/37.html
Previous EAT decision: www.bailii.org/uk/cases/UKEAT/2011/0301_10_0803.html

Further summary of the case on College of Law defeats discrimination claim in appeal court (link to thelawyer.com).

My comment

This case was decided under the Disability Discrimination Act 1995. For the equivalent rules under Equality Act 2010, which now applies, see Employment: Trade and professional qualifications bodies.

Competence standards themselves should be justifiable

Equality Act 2010 has the same rule as ss.14A-14B DDA - that competence standards in professional/trade exams (and university exams) are not subject to the reasonable adjustment duty. However, there may be an Equality Act claim even if the time requirement is a competence standard so the reasonable adjustment duty does not apply. Under Equality Act 2010, the time requirement could be unlawful as 'indirect discrimination', unless the objective justification defence applies. For exams other than professional/trade exams, 'discrimination arising from disability' could also apply - this too is subject to the objective justification defence.

Why was the 'objective justification' test not raised in this case? My guess is this: before Equality Act 2010, the claimant would have had difficulty showing there was 'disability-related discrimination'. The difficulty is due to the restrictive interpretation given to disability-related discrimination by the Malcolm case. See London Borough of Lewisham v Macolm: Examinations - a special problem? The Equality Act 2010 has now introduced new types of claim to deal with the problem caused by that case.

Competence standard as 'working within time constraint' versus the particular 'time requirement'

According to an example in the post-16 education 2007 Code of Practice (para 5.74): "A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period."

This Burke case seems to indicate the distinction may be more subtle. Lewison LJ appears to have accepted that there was real prospect of succeeding with an argument that a competence standard of being able to work under time constraint need not mean the particular time requirement adopted for the exam was a competence standard. It might still be arguable (presumably) that the time limit for the exam was subject to the reasonable adjustment duty, even if it was legitimate to test one's ability to work within a time constraint.

Boundaries of what is a 'competence standard' may not necessarily be important in practice

The distinction will not necessairly be imporant in practice. If the 'time requirement' is itself a competence standard, the qualifications body may find it that much harder to show that the particular time requirement (eg 3 hours) meets the 'objective justification' test. If the competence standard was, say, ability to work under a time constraint, that may be easier to objectively justify - but the main argument could shift to whether an adjustment should reasonably have been made.

Arguments to justify testing ability to work within limited time

The case includes arguments aimed at justifying assessment of the student's ability to work under time pressure, in the context of this professional exam seeking to test competencies for becoming a solicitor. These arguments would be relevant to take into account in deciding -

Employment: Trade and professional qualifications bodies
Oral assessments, and assessed presentations
Further and higher education in the Equality Act: more detail

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Last updated 12th February, 2012