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Professional exams

This page deals with the rules in sections 53 and 54 Equality Act 2010 prohibiting disability discrimination by trade and professional qualifications bodies, such as the General Medical Council or Public Carriage Office.

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The " 2008 Code"
means the 2008 Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to dera.ioe.ac.uk).

Summary

Trade and professional exams are subject to the Equality Act. The key points are:

The rules discussed on this page are the special rules in sections 53 and 54 Equality Act 2010 on disability discrimination by trade and professional qualifications bodies, such as the General Medical Council or Public Carriage Office.

Universities are not subject to ss.53 and 54,

Trade and professional exams are subject to the Equality Act. The reasonable adjustments duty and other types of discrimination claim apply as regards the way competence standards are assessed.

The question of what competence standards should be assessed is a bit different There should be a single set of standards for everyone, so they are not subject to the reasonable adjustment duty. However these standards are still subject to the Equality Act, by way of a claim for indirect discrimination. If competence standards disadvantage a group of disabled people, it is for the qualifications body to show they are a proportionate means of achieving a legitimate aim. For example, if people who stammer could do the actual job (or some specialisms within the job) but are being blocked by the exam, that could be a good argument that the relevant competence standards is not justified, and so unlawful.

It is sometimes unclear whether something is a competence standard. For example, where a time limit is imposed, is it a competence standard that the person can perform the task within that time limit, or is the time limit just part of the way in which some more general competence standard is assessed so that the reasonable adjustment duty can apply? However, even if it is a competence standard so as not to be subject to the reasonable adjustment duty, the Equality Act still applies to it as outlined above.

Main points

Coverage

Sections 53 and 54 rules cover bodies which confer professional qualifications or authorisations, for example to become a doctor, lawyer, actuary, taxi driver or plumber.

The rules go beyond exams. For example, a police authority deciding whether an officer has passed their probationary period may be covered.

Some bodies are excluded, such as universities and other bodies within s.91 EqA. However, any body not covered by ss.53 and 54 will almost certainly be covered by different provisions of the Equality Act which give the disabled person greater rights than those discussed on this page (See Services: Which rules apply? Exams).

More detail below: What are 'qualifications bodies'?

The rules for qualification bodies

The most important types of discrimination that can apply are 1. the duty to make reasonable adjustments and 2. indirect discrimination:

  1. the duty to make reasonable adjustments applies to the way in which competence standards are assessed: eg whether written or oral, how long is given, allowing a blind person special software to allow them to access the computer;

  2. indirect discrimination applies to whether particular competence standards ought to be assessed. If applying a particular competence standard disadvantages disabled people and the matter is taken to a tribunal, the qualifications body must show that imposing the standard is a proportionate means of achieving a legitimate aim (the objective justification test).

Sometimes the competence standard is so bound up with how it is assessed that possible adjustments are limited. For example in an exam to become an interpreter, ability to speak Russion cannot be examined through a written test. This is also an important issue for Time limits in exams (below), where the qualifications body may argue that the competence standard is ability to do something orally within a particular time, and therefore not subject to the reasonable adjustment duty.

However, the key point to understand here is that even though the competence standard itself is not subject to the reasonable adjustment duty, it is still very much subject to the Equality Act, through a claim for indirect discrimination. The qualifications body must satisfy the tribunal that the standard is proportionate, bearing in mind its detriment on disabled people.

(Also a user-friendly (I hope) outline with examples of possible adjustments, in the context of the broadly similar rules applying to universities, is Oral assessments, and assessed presentations.)

Time limits in exams

Disputes often arise on how far a time limit can be imposed. For stammering, the issue arises with oral exams, such as medical OSCE exams where candidates have to go round different 'stations' examining a patient at each.

Before considering time limits, it is worth looking at whether other adjustments might be sufficient. For example, the examiner could be informed about the stammer and how it affects the person, and be asked to take account of the stammer and not mark him down if his performance was affected by the stammer. This happened in a medical OCSE exam: UK case study (link to equalitytalk.org.uk) (scroll down to 'Case study: initially inappropriate adjustment in medical exam (UK)'). That was sufficient in that case study, at least to secure a pass, but sometimes it may not be.

Time limits: Reasonable adjustments

If a student asks for an extension of time in a professional exam, the qualifications body will often argue that the time limit is itself a competence standard, and so not subject to the reasonable adjustment duty.

The appeal courts have yet to clarify in what circumstances a time limit will itself be a competence standard. The Court of Appeal unfortunately skirted the issue in Burke v College of Law (2012). However, it is interesting that in giving leave to appeal to the Court of Appeal there, Lewison LJ said that though ability to work under a time constraint was a competence for a solicitor, it did not necessarily follow that sitting the exams under that particular time constraint was a competence standard.

This helps in arguing that the particular time limit imposed in the exam may not itself be a competence standard, even though there may indeed be time pressure in the 'real life' work situation.

Time limits: Is the competence standard justified?

Even where the reasonable adjustment duty does not apply (because the time limit is a competence standard), a competence standard which puts disabled people at a particular disadvantage, such as the OCSE, must be justified as a proportionate means of achieving a legitimate aim (objective justification).

It is for the qualifications body to show that the standard is justified. It will be important whether the aim can be achieved by less discriminatory means, and whether the detriment to disabled people outweighs the importance of the aim to be achieved. There is a balancing excercise by the tribunal.

Time limits: Relevant arguments on both reasonable adjustments and competence standards

Relevant arguments are likely to be similar whether the question is (a) whether an adjustment to time limits is reasonable or (b) whether a competence standard on time constraints is justified. These are some relevant points, taking the OCSE as an example but similar points will apply to many professions or trades:

Group test

If the issue is justification of a competence standard, as opposed to reasonable adjustments, the focus may perhaps be on the group of people with the same disability (eg possibly people with such and such level of stammer, or speech impairment?), rather than just on the individual claimant. So for example on the first 'relevant argument' above - how is the person's communication in the actual work situation - the focus may not on the individual claimant's communication, but on the fact that people who stammer more generally may communicate with greater ease in the work situation than in the exam. It is not clear whether this would make much if any difference in practice.

For discrimination claims other than indirect discrimination, reasonableness or objective justification should be judged on an individual rather than group basis. See also Objective justification: group or individual test?

Code of Practice

There is no Code of Practice for these rules under Equality Act 2010.

However, there is a 2008 Code of Practice issued under the Disability Discrimination Act, namely the Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to dera.ioe.ac.uk). I call this 'the 2008 Code'. It is possible that tribunals are still obliged to have regard to this (though it is not binding).

Some parts of the Code are out-of-date because the Equality Act has differences from the DDA. However, an area which has not changed is that the reasonable adjustment duty cannot be applied to a competence standard. Also, although the DDA had no concept of 'indirect discrimination', the objective justification test (proportionate means of achieving a legitimate aim) which a competence standard must meet is the same now as it was then.

What is a 'qualifications body'?

Broadly, a qualifications body is a body which can confer a professional or trade qualification or authorisation, such as the General Medical Council, or the Public Carriage Office, unless already covered by the Part 4 education provisions. It seems that entry onto a voluntary register can also be within the definition.

Burke v College of Law (2012)
The College of Law was held to be a qualifications body, as well as the Solicitors Regulation Authority.

The definition of a qualifications body is in s.54 EqA. Subject to exceptions, the test is whether the body can confer (or renew or extend) an 'authorisation, qualification, recognition, registration, enrolment, approval or certification. which is needed for, or facilitates engagement in, a particular trade or profession.'

There need not necessarily be an exam:

Hart v Chief Constable of Derbyshire (link to bailii.org) (2007)
The Employment Appeal Tribunal raised the possibility, without deciding the point, that a police authority might be seen as a qualifications body in deciding whether an officer had completed their probationary period. (See also refusal of leave to appeal to Court of Appeal.)

There are separate rules for GCSEs, A-levels and other designated exams (see Examining boards), and for bodies such as universities and further education colleges. Any body not covered by ss.53 and 54 will almost certainly be covered by different provisions of the Equality Act which give the disabled person greater rights than discussed on this page (See Services: Which rules apply? Exams).

What is a competence standard?

S.53(7) EqA says that the application by a qualifications body of a competence standard is not disability discrimination unless it is indirect discrimination. In other words, as explained by the 2008 Code, the duty to make reasonable adjustments and other types of claim under the EqA can apply to the process of assessing the standard, but do not apply to the question of whether that standard should be applied. The latter question is only subject to review only as possible indirect discrimination, where the qualifications body has a defence if it shows the standard is a proportionate means of achieving a legitimate aim. The idea is that competence standards should be consistent standards that do not have to be adjusted for individual circumstances, but also must be non-discriminatory. (Note that professional exams are probably covered by the EU Framework Employment Directive, where there is no special provision for competence standards, so the UK is obliged to outlaw disability discrimination in this area.)

The first question therefore is what is a 'competence standard'?

A competence standard is defined 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' (s.54(6) EqA). The 2008 Code (which is not binding) explains that, for example, having a certain standard of eyesight is a competence standard required for a pilot's qualification - presumably a 'medical' standard. Having a certain level of knowledge of the UK taxation system is a competence standard for an accountancy qualification (para 8.27 of the Code).

The Code goes on to say: 'A requirement that a person has a particular level of knowledge of a subject, for example, or has the strength or ability to carry out a particular task or activity within a set period of time, would probably be a competence standard' (para 8.28).

The standard must relate to a level of 'competence or ability'. Accordingly the Code (at para 8.29) says a condition that a person has, for example, a certain length of experience of doing something will not be a competence standard if it does not determine a particular level of competence or ability. So a requirement that a candidate must have at least ten years continuous experience is unlikely to amount to a competence standard (a person who has two periods of experience which total ten years may have equivalent ability and experience)

Situations where the assessment process is bound up with the competence standard

The 2008 Code of Practice says:

8.31 Sometimes, of course, the process of assessing whether a competence standard has been achieved is inextricably linked to the standard itself. The conferment of some qualifications is conditional upon having a practical skill or ability which must be demonstrated by completing a practical test. The ability to take the test may itself amount to a competence standard.

Para 8.31 of the 2008 Code goes on to give some examples, including:

An oral examination for a person training to be a Russian interpreter cannot be done in an alternative way, e.g. as a written examination, because the examination is to ascertain whether someone can speak Russian.

A driving test for a heavy goods vehicle licence cannot be done solely as a written test because the purpose of the test is to ascertain whether someone can actually drive a heavy goods vehicle.

The 2008 Code has some further examples at para 8.20 which deals with the reasonable adjustment duty. These include one example where an adjustment to an interpreter exam would (in contrast to the above example) be reasonable:

A woman with a mental health problem is informed that an oral examination for a diploma in interpreting and translation has been arranged for 8:30 am. The timing of the examination would substantially disadvantage the woman, because a side effect of her medication is extreme drowsiness for several hours after taking her morning dose – which prevents her from concentrating well. The qualifications body agrees to her request to take the examination later in the day.

A woman with a learning disability is allowed extra time by a qualifications body to take a written examination. This is likely to be a reasonable adjustment for the qualifications body to make, because the trade which the woman wants to enter would not require written work to be done in a short amount of time, so the ability to write quickly is not a competence standard.

A disabled man asks for twice as much time for a test in shorthand because his disability makes it impossible for him to write quickly. This is unlikely to be a reasonable adjustment for the qualifications body to make, because speed is an essential element of the shorthand qualification – in other words, it is likely to be a competence standard, and thus the duty to make reasonable adjustments does not apply.

Time limits

As mentioned above, para 8.28 of the Code (which is not binding) gives 'ability to carry out a particular task or activity within a set period of time' as something which would probably be a competence standard, and para 8.20 gives a shorthand exam as an example of this (quoted above). However, how far a particular time limit will be a competence standard is a contentious issue, which the appeal courts have not yet decided:

Burke v College of Law (2012)
The Court of Appeal did not have to reach a decision on whether a time requirement for a professional legal exam was a competence standard. However, in giving leave to appeal, Lewison LJ seems to have accepted that there was real prospect of success for an argument that a competence standard of being able to work under time constraint did not necessarily mean that the particular time requirement adopted for the exam was a competence standard. Presumably, it might still be arguable that the particular time requirement was subject to the reasonable adjustment duty.

See further above Time limits in exams.

Indirect discrimination: Whether a particular competence standard can be applied

The only basis on which the application of a particular competence standard can be challenged is 'indirect discrimination' (EqA s.53(7). Broadly, there is indirect discrimination where

The reasonable adjustment duty does not apply here. The idea is that it is highly desirable for qualifications bodies to be able to apply one professional standard, applying equally to all applicants, rather than being obliged to adjust the standard on a case-by-case basis.

Objective justification

Accordingly, on the question whether a particular standard can be applied, the most important issue is likely to be whether the body can show that the standard meets the 'objective justification' test, namely that the standard is a proportionate means of achieving a legitimate aim.

Some key points on this are set out above: Time limits: Relevant arguments on both reasonable adjustments and competence standards. This section (below) discusses the test more generally

My 'Objective justification' page gives more detail on the test in general. It is for the qualifications body to show that the standard is justified. It will be particularly important whether the aim can be achieved by less discriminatory means. There is also the question whether the detriment to disabled people outweighs the importance of the aim to be achieved. There is a balancing excercise by the tribunal.

The 2008 Code discusses the objective justification test specifically in relation to competence standards at paras 8.36 - 8.41. Para 8.36 gives the example of a disabled person who fails a fitness test, where however the qualifications body had not reviewed the fitness standards to see if they were proportionate to the requirements of the job. If it had done so, it would have found that the fitness standard demanded was much higher than many people actually working in that job could now achieve (even though these people achieved that standard at the time of qualification). The qualifications body would therefore be unlikely to be able to justify this competence standard.

Para 8.39 of the Code talks about medical standards. It says stereotypical assumptions about health and safety implications should be avoided. A qualifications body would have to provide cogent evidence that the standard is genuinely fundamental to the needs of the profession or trade in order to ensure the competence of practitioners.

Para 8.41 looks at how a qualifications body can avoid discrimination in relation to competence standards. It advises that it is more likely to be possible to justify competence standards if their nature and effect has been considered in advance. Amongst the factors which a body's review of its standards might involve are: identifying the purpose of each standard and examining how the standard achieves this; considering the impact which each competence standard may have on disabled people and, in the case of a standard which may have an adverse impact, asking whether the application of the standard is absolutely necessary; and examining whether the purpose for which any competence standard is applied could be achieved in a way which does not have an adverse impact on disabled people, and documenting this.

Test may be based on group rather than individual

See above Group test.

Process for assessing a competence standard: General EqA rules apply

Reasonable adjustments

When it comes to how the competence standard is assessed, eg whether orally or in writing, or how long should be given for an oral exam, the reasonable adjustment duty applies (paragraphs 8.30ff and 8.20 of the 2008 Code).

Burke v College of Law (2012)
Sufficient reasonable adjustments (including extra time) were held to have been given to a student with multiple sclerosis taking exams to become a solicitor.

As discussed above, the nature of the competence standard - assuming that the standard meets the 'objective justification' test - may place constraints on how it can be assessed. For example, ability to speak a language can only be tested orally, not in writing. See above Situations where the assessment process is bound up with the competence standard.

As regards whether more time should be given for a spoken examination, see above Time limits in exams.

There are also examples of possible reasonable adjustments in Oral assessments, and assessed presentations.

Other EqA claims

The other types of EqA claim can also apply, again assuming the question is not whether a particular competence standard can be applied. The possible types of claim are basically the same as those applying to claims against employers, namely:

Which type of claim applies will not always be that important. As discussed above regarding time limits - Time limits: Relevant arguments on both reasonable adjustments and competence standards - similar arguments will often be relevant whether one is dealing with a claim for reasonable adjustments (the question whether an adjustment is reasonable), or discrimination arising from disability or indirect discrimination (the question whether the the objective justification defence applies).

An assessor from a motor mechanics qualifications body is judging a number of practical tasks performed in the workplace by a trainee motor mechanic who has a speech impairment. The assessor imitates the mechanic's manner of speech and makes offensive remarks about him to the trainee's line manager. This is harassment, whether or not the disabled man was present when the comments were made, because they were made with the intention of humiliating him."
Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies, 2008. Para. 4.37

Disputes

Unless resolved through grievance procedures, disputes can normally be taken to an Employment Tribunal (subject to a time limit). ACAS can get involved to conciliate, and indeed must now be approached before a tribunal claim is submitted. However the Employment Tribunal is not used where a statutory appeal is available (EqA s.120(7)), such as in the case of the General Medical Council.

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Last updated 12th October 2014