Burke v The College of Law & Anor

For qualification bodies, a requirement that an examination tests the ability to work under time pressure may be a competence standard. The duty to make reasonable adjustments does not apply to the application of that standard, although a qualification body may voluntarily allow additional time where the integrity of the assessment is preserved.

Administrative arrangements such as examination location and supervision are not themselves competence standards. They may therefore require reasonable adjustment where they place a disabled person at a substantial disadvantage. The duty is satisfied where practical adjustments remove the relevant disadvantage and further adjustments, such as unsupervised home examinations, would be impracticable or undermine the assessment’s integrity.

The claimant, who had multiple sclerosis, was undertaking the Legal Practice Course and sought further adjustments to his examinations. He requested more than the 60 per cent additional time already granted and permission to take examinations at home without ordinary supervision.

The Employment Tribunal found that the time requirement was a competence standard, but that examination location and supervision were administrative arrangements. It held that accommodation near the examination centre, split examinations, additional time, breaks and other measures discharged the reasonable-adjustment duty. The claimant appealed, challenging the competence-standard finding, the adequacy of the reasons concerning accommodation, and the refusal to allow home examinations.

The central issues were whether the time requirement was a competence standard and whether the adjustments made were reasonable.

1. Appeal dismissed. The Employment Tribunal had correctly identified the statutory question and was entitled to find that the time requirement was a competence standard under Disability Discrimination Act 1995, s.14A(5). The examinations were designed to assess competence in dealing with work under time pressure, reflecting the demands of legal practice.

2. The fact that the respondents granted 60 per cent additional time did not prevent time from being a competence standard. A qualification body may make an adjustment to a competence standard without being under a statutory duty to do so. There was a material distinction between an extension preserving the nature and integrity of the examination and an extension so extensive that the examination no longer tested the relevant ability.

3. The requirement that the examination be supervised was not itself a competence standard. However, the Tribunal was entitled to find that supervision did not place the claimant at a substantial disadvantage and, alternatively, that removing supervision would not be reasonable. Unsupervised examinations would be impracticable and would risk the credibility and integrity of the assessment.

4. The location requirement was a provision, criterion or practice capable of placing the claimant at a substantial disadvantage because of fatigue, stress and tiredness caused by travel. The respondents reasonably addressed that disadvantage by providing accommodation near the examination centre, splitting examinations, allowing additional breaks and granting extended time. Home examinations were not required on the facts, particularly since the proposed invigilation arrangements would have been costly and impracticable.

5. The Tribunal’s reasons were sufficient in accordance with Meek v City of Birmingham District Council [1987] IRLR 250. A complaint about the quality of the accommodation was not argued before the Tribunal and could not properly found the appeal.

• Employment Appeal Tribunal: dismissed the appeal from the unanimous judgment of the Employment Tribunal sitting at London South in April and August 2009.
• Employment Tribunal: dismissed the claimant’s disability-discrimination claim concerning the respondents’ alleged failure to make reasonable adjustments.