Updated Feb 27, 2024

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University appeal against Equality Act finding dismissed

In University of Bristol v Abrahart, the university appealed against a judge's findings that it had breached the Equality Act 2010.

The student was in the second year of a physics degree at the university when she took her own life in April 2018. She had been suffering from depression and social anxiety disorder, the effects of which amounted to a "disability" for the purposes of the Act. Her conditions substantially impaired her ability to participate in oral assessments and, in particular, interviews and a laboratory conference about experiments, which she had to complete as part of a mandatory module.

The student's father issued proceedings claiming that, rather than insisting on her participation in the oral assessment requirements of the module, giving her low marks when she performed badly and penalising her non-attendance, the university should have removed or adjusted the requirements to save her from the level of anxiety and distress which they caused. The university's failure to do so, and other deficiencies in its handling of the student's situation, caused her psychiatric injury and injury to feelings and contributed to her suicide. The student's father contended that the university unlawfully discriminated against the student contrary to the Equality Act 2010. The judge found that the university had breached its statutory duties. The university argued that it had no duty to adjust the requirements of the module because the oral assessments were a "competence standard" within the Full Text of Schedule 13, regarding reasonable adjustments in education.

Under the Equality Act 2010, an educational institution was required to take reasonable steps to avoid a disabled person suffering disadvantage in relation to a relevant matter because of its provisions, criterion, or practice (PCP). Under the Act, references to "a disabled person" who was placed at a substantial disadvantage were to be disabled persons or students "generally". Therefore, the duty to make reasonable adjustments might be owed to people who were not known to the educational institution before the issue arose. The duty was "anticipatory".

Whether failure to anticipate a particular disadvantage resulted in a breach of duty depended on the circumstances, which informed the question of whether there were reasonable steps that the responsible body could have taken to avoid the disadvantage. Education providers were not expected to anticipate the needs of every prospective student, but they had to think about and take, reasonable steps to overcome barriers which might impede people with different kinds of disability.

The responsible body did not have to have actual or constructive knowledge of the claimant's disability or its effects, nor did the claimant have to identify the adjustments which ought to have been made. However, by the time of the hearing, the claimant's case should be clear as to the necessary adjustments. If there was some evidence of an apparently reasonable adjustment from which the court could conclude that the duty was breached, then the burden of proof shifted to the institution to prove that the duty was not breached.

Whether the duty, having arisen, had been complied with, depended on the reasonableness question, which is an objective question for the court, considering all the relevant circumstances, including what the institution ought to have known or anticipated. The court could reach sensible conclusions about what steps ought reasonably to have been taken to address the disadvantage experienced by the disabled person, considering both parties' interests and issues. The duty might result in more favourable treatment for the disabled person if it was reasonable to do so to mitigate the disadvantage experienced by them as a result of their disability.

A standard which measured a particular level of competence or ability could not be required to be adjusted in an individual case, even if the disabled person could not meet the standard because of their disability. However, methods of assessment of competence standards were subject to the duty to make a reasonable adjustment. If a competence standard operated in a way which was indirectly discriminatory, an educational institution had to show that it was a proportionate means of achieving a legitimate aim. The fact that a PCP did not fall within that exception did not mean that a given adjustment would necessarily have to be made. The substantial disadvantage test had to be satisfied and it had to be reasonable for the adjustment to be made in the circumstances. The legislation permitted sensible conclusions on the facts of each case notwithstanding a narrow reading of the exception.

In determining whether the requirements of the module were competence standards or methods of assessing whether those standards had been met, it was important to identify the:

  • competence or ability being measured;
  • standards being applied to determine whether the relevant competence level had been met;
  • methods of assessment of whether those standards had been met.

The university claimed that the ability to explain laboratory work orally, to defend it and to answer questions on it was a core competency of a professional scientist. The judge found that the PCP's requirements to be assessed by way of the laboratory interviews and conference did not test proficiency in oral communication or presentation, their purpose was to elicit answers to questions put to the student. The competence standard and the method of assessment were not inextricably linked and other methods could have been employed.

It was common ground that the PCP put the student at a substantial disadvantage in comparison with persons who were not disabled. Therefore the duty to make reasonable adjustments arose. The university argued that although adjustments could have been made, it was reasonable to first request a disability support summary in fairness to other students and in order to maintain the academic integrity of the course. It submitted that, as the student had not engaged with it in that process, it was not reasonable for it to have done anything more. The only question was whether the university had satisfied the judge that it was not reasonable to assess the student's written work.

"The judgment of the Court on the facts of this particular case was that the University had not done so".

The appeal was dismissed.

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