Burke v The College of Law and Solicitors Regulation Authority (Court of Appeal)

The Court of Appeal dismissed Mr Burke's appeal against the Employment Appeal Tribunal and the employment tribunal. The central legal issues related to the duty of qualifications bodies under section 14B of the Disability Discrimination Act 1995 (now the Equality Act 2010) to make reasonable adjustments and the exclusion of that duty in respect of competence standards (as defined in s.14A(5)).

The tribunal concluded that the requirement to complete LPC examination papers within a set time engaged the assessment of the candidate's ability to work under time pressure and treated it as a competence standard; the Employment Appeal Tribunal upheld that conclusion. Independently, and dispositively, the tribunal found that, taken together, the package of adjustments actually made by the respondents (including 60% extra time, splitting papers, stop-the-clock breaks, accessible accommodation and other measures) was reasonable in all the circumstances and addressed the substantial disadvantage caused by the appellant's disability. The Court of Appeal endorsed that approach and dismissed the appeal, concluding it was unnecessary to decide the broader question whether the time requirement was a competence standard.

The appellant, Mr Burke, a person diagnosed with multiple sclerosis, challenged the College of Law and the Solicitors Regulation Authority on the basis that they had failed in their duty under the Disability Discrimination Act 1995 to make reasonable adjustments to the Legal Practice Course examinations. He sought a range of adjustments including substantially extended time, unsupervised or home-based examinations, and bespoke supervision arrangements.

Procedural posture: The claim was heard by an employment tribunal (2 September 2009), then by the Employment Appeal Tribunal (decision dated 8 March 2011), and finally by the Court of Appeal on limited permission which had been initially refused on the papers and later granted by Lewison LJ for a further appeal on the time-requirement point.

Issues framed:

• Whether the requirement that LPC examination papers be completed within a set time was a "competence standard" excluded from the duty to make reasonable adjustments under s.14B DDA 1995 (s.14A(5) definition).
• Whether, in any event, the adjustments actually provided by the respondents were reasonable to prevent the appellant being placed at a substantial disadvantage.

Court's reasoning and outcome: The employment tribunal found that the LPC is a vocational course whose assessments are intended to test the ability to marshal knowledge and skill under time pressure and that the time requirement therefore related to competence; however the tribunal proceeded to assess the reasonableness of the adjustments made. It found that the respondents had provided a package of measures (including 60% extra time, splitting of papers so no paper exceeded two hours, stop-the-clock breaks, ground-floor/accessible rooms, exam on cream paper, provision of computer or amanuensis and funded local accommodation) which addressed the appellant's fatigue and memory problems and were reasonable in all the circumstances. The Employment Appeal Tribunal agreed that the tribunal had asked the right question and was entitled to conclude that the adjustments were reasonable; it also observed there would be a point at which further extension of time (beyond 100%) would undermine the assessment's integrity. The Court of Appeal concluded the employment tribunal had in fact decided the adjustments were reasonable in the round and that that decision was dispositive. The Court therefore dismissed the appeal and expressed no view on the broader legal question whether the time requirement was, as a matter of law, a competence standard.

The Court noted also the practical difficulties and cost of the appellant's proposed alternatives (unsupervised or prolonged home-based supervised examinations) and accepted the respondents' evidence that larger extensions of time would have reached a point at which the examination would no longer be testing the intended competence.

Appeal dismissed. The Court of Appeal held that the employment tribunal had, when considering the adjustments collectively, properly concluded that the package of adjustments provided by the respondents was reasonable to prevent the appellant being placed at a substantial disadvantage. Because that conclusion disposed of the appeal, the court did not decide the wider question whether the time requirement was a competence standard under s.14A(5) of the Disability Discrimination Act 1995.

The claim was first heard by the employment tribunal (decision dated 2 September 2009). The Employment Appeal Tribunal dismissed the appellant's appeal (decision dated 8 March 2011; UKEAT/0301/10/SM). Permission to appeal to the Court of Appeal was initially refused on the papers by Elias LJ, then granted on a renewed oral application by Lewison LJ limited to the time-requirement issue. The Court of Appeal heard the appeal and dismissed it on 3 February 2012 ([2012] EWCA Civ 37).