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Oral assessments, and assessed presentations

Oral assessments, including assessed presentations, are often a particular concern for students who stammer. However, there is support available. This page looks particularly at assessments in higher and further education, for example universities. There are some differences in the rules for trade/professional bodies, and for general exam boards responsible for GCSEs and A-levels.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

Introduction
Examples of how assessments can be altered
What are the Equality Act rules on oral assessments?

Introduction

Assessments are often designed in a way which can unnecessarily disadvantage people who stammer. However, there are Equality Act rules to help disabled students, and your university or college should be happy to discuss with you what support you need.

For those who stammer, presentations and other oral assessments are often a particular problem. If you have concerns, you can speak to your personal tutor or course tutor to discuss what can be done to put you on a level playing field. Extra time is an obvious possibility, but there are many more examples below. You can also approach the university's disability officer. If you are not yet at the university and are concerned about assessments for admission, again you can raise your concerns with staff. There is more on these points in a very useful article: How to succeed at university if you stammer (link to BSA website).

The university or college may be obliged to take steps even without you raising the issue, if at least one of its staff knows of your stammer. The stammer will often be obvious. Even so, if you have concerns it makes sense to raise the issue yourself.

What steps can be taken will depend on the situation as well as what your needs are. If French oral skills are legitimately being assessed, a written test would not work but extra time might be allowed. Partly this is common sense, and you could just discuss with the university or college what can be done. However, under What are the Equality Act rules on oral assessments? below I try to summarise the relevant Equality Act rules.

Examination and assessment examples:

"The entrance requirements for a GCSE French course state that applicants 'must be able to speak clearly'. This requirement could unjustifiably exclude some people whose impairments result in a significant effect on their speech." Para 8.7

"A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This is likely to be a reasonable adjustment." Para 8.31

"A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is 'speaking clearly in a customer services environment'. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful." Para 9.19.

From 2007 Code of Practice: Post-16 Education
This 2007 Code relates to the DDA - the Equality Act Code of Practice not yet available.

Examples of how assessments can be altered

Here are some ideas for changes that can be made to oral assessments and presentations. I don't distinguish here between 'reasonable adjustments' and the rules on competence standards.

There are more examples in De Montfort University's very useful Working with students who stammer (pdf, external link). Some of my examples on employment can be also adapted to assessments.

What are the Equality Act rules on oral assessments?

Those are some of the things that may help people who stammer. But what does the Equality Act actually require? Here I try to give a (relatively) untechnical summary.There is more detail on my Further and higher education page, including references to the Code of Practice.

Assessments test how far a person meets particular 'competence standards'. It can be helpful to divide the rules into two parts:

  1. the way in which a standard is assessed is subject to the duty to make reasonable adjustments, and often also to an 'objective justification' test; and
  2. there is an 'objective justification' test for whether it is legitimate to assess a standard which disadvantages disabled people.

How the standard is assessed - duty to make reasonable adjustments

The normal reasonable adjustment duty is, broadly, that if the way an assessment is done puts a person who stammers at a disadvantage, the university must take any reasonable steps so that he is not at a disadvantage (unless the disadvantage is only minor or trivial).

Medical exams

There is a United States case, Hartman v National Board of Medical Examiners (2010) in which a medical student was granted a preliminary injunction allowing him adjustments in a clinical skills exam, including use of a text-to-speech device, double time for each patient encounter, and replacement of the telephone patient encounters with in-person encounters. Indeed, the latter two adjustments had been agreed prior to the case.

This is not a UK case, but the test used seemed to be roughly similar to that in Great Britain for reasonable adjustments. Also, practice of non-UK bodies, as in this case, may be of some interest in addressing whether a UK competence standard inconsistent with such adjustments is justified as a proportionate means of achieving a legitimate aim.

However, the university or college only has to make adjustments which are consistent with what is being tested. So it may be reasonable to do an oral assessment in writing, but not if it is French oral skills that are being tested. It will very often be reasonable to allow extra time for the oral assessment.

Extra time may not be possible if it is actually the ability to do the oral task within that limited time that is being tested, but this will probably be rare. An example might be assessing a doctor's ability to deal with an emergency medical situation - but I don't know whether that is actually a competence standard which is assessed, and see box on right regarding medical exams.

Even in that rare situation of assessing oral ability within a limited time, it may be possible to argue that exams are an artificially stressful situation. See this Ohio firefighter case, where speech was fine at a fire but not in interview. Also the employment tribunal decision in Wakefield v Land Registry considered that where the stammer was a particular problem in job interviews, the interview was not a valid way to test how the individual would perform in the workplace.

Where ability to perform within a limited time is being tested, it may be that (say) ability to do so within time constraints that is the 'competence standard', rather than the particular time limit used in the exam. The time limit may still be subject to the reasonable adjustment duty. See discussion (including 'My comment') in Burke v College of Law (2012). That case related to professional exams, where it may be easier to 'justify' (see next heading) assessing ability to work under pressure.

The reasonable adjustment duty is not the only type of discrimination claim that can apply to how standards are assessed. In particular 'discrimination arising from disability' and indirect discrimination can also be relevant. For those, the main potential defence will be if the examining body shows that what it did meets the 'objective justification' test, ie that it was a legitimate means of achieving a legitimate aim.

Are competence standards 'justified'?

That is not the end of the story though. Say it is oral skills (or the ability to do something orally within a limited time) that are being tested. If that (broadly speaking) leads to the student being disadvantaged because of the stammer, eg failing the assessment or getting a lower mark, then the university or college has to be able to objectively justify the fact that it is assessing that competence standard. It has to show there was a good enough reason for assessing oral skills for example, or the time limit. If it cannot, the student may well have an Equality Act claim for 'indirect discrimination' or discrimination arising from disability. In some cases the university may even be liable for direct discrimination for which there is no justification defence. (In the case of trade/professional qualification bodies, only indirect discrimination can be claimed.)

What is a good enough reason for assessing a particular standard? The legal test is whether the standard is a 'proportionate means of achieving a legitimate aim'. See more on this objective justification test, and also my Further and higher education page.

Let us say there is a good enough reason for assessing oral skills. Even so, some criteria being used to assess those skills may not be justified. For example, 'fluency' or 'clarity of speech' may be open to challenge if included in the assessment criteria.

In summary

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Last updated 21st January, 2011