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Disability Discrimination Case - Examination Candidate Successfully Brings Claim Against Qualifications Body January 2007 A case for disability discrimination has, for the first time, been decided in relation to a qualifications body (ie body which confers a professional or trade qualification, eg General Medical Council, City & Guilds). An employment tribunal found that Project Management Institute (PMI) failed to make reasonable adjustments for a visually impaired candidate (who had only 3% useful vision) in relation to its arrangements for sitting the PMP Credential Examination, even though she passed that examination. She was awarded £3,000 for injury to feelings. Though the decision is not binding on other courts, it provides some insight into the approach that will be taken in deciding disability discrimination claims in the education sector generally, as the obligations of qualifications bodies under the Disability Discrimination Act (DDA) are similar to those which apply to FE and HE institutions. Claims against qualifications bodies are brought in the Employment Tribunal. In the current case, the tribunal relied significantly on case law in the context of the employment relationship, an entirely reasonable approach given the paucity of cases to date against providers of education and training. The claimant, Ms Latif, sought to make 3 claims of discrimination against PMI as follows:
- Breach of the duty to make reasonable adjustments in failing to provide a recommended course guide book in a form accessible to Ms Latif
This claim was dismissed by the Tribunal. Under the DDA, qualifications bodies are required to make reasonable adjustments to provisions, criteria, practices or arrangements made for determining on whom a professional qualification may be conferred, where those provisions etc put the disabled person at a substantial disadvantage in comparison with persons who are not disabled. There is no freestanding duty to make reasonable adjustments outside of this context. The Tribunal concluded that in recommending its own guidebook as a useful tool in preparing for the exam, PMI was not making an arrangement for the purpose of sitting the examination (i.e. it was not related to the process for determining who should be conferred with the professional qualification). The guidebook was not required course material and it was possible to study and pass the examination using other texts. Hence, PMI’s conduct was outside of the ambit of the DDA. The duty imposed on FE and HE institutions to make reasonable adjustments is broader than that imposed on qualifications bodies because it extends to student services, which are very widely described in the Disability Rights Commission’s (DRC) statutory Code of Practice. Consequently, in providing its own guidance books for students, an institution is very likely to be providing a student service. It may therefore have to consider whether alternative formats should be made available in order reasonably to accommodate a student’s disability, particularly if the text in question is prescribed reading. It may be arguable, however, that where there is a wide choice of competing publications and the text is not prescribed course material, the disabled student is not put at a substantial disadvantage in being unable to access the institution’s own version. If so, a claim for discrimination would not be established.
- Direct or disability-related discrimination in requesting Ms Latif to supply a doctor’s note confirming her visual impairment.
The Tribunal concluded that there was no evidence that PMI would have treated other candidates (either non-disabled or with a different disability) any differently. All candidates who requested a modification of the normal examination conditions were requested to provide verification from appropriate medical authorities in order to prevent abuse of the system. The Tribunal therefore rejected the claim that PMI directly discriminated against Ms Latif.
- Disability-related discrimination
While the Tribunal accepted that asking Ms Latif to provide proof of her disability amounted to less favourable treatment for a reason relating to her disability, PMI was justified in doing so. Medical evidence to verify and support a request for special examination conditions was highly relevant to any such request and was a legitimate and real concern, since otherwise the system was vulnerable to abuse.
- Failure to make reasonable adjustments to examination arrangements
The question to be addressed was whether PMI took reasonable steps to prevent Ms Latif suffering substantial disadvantage with regard to the arrangements it made for her to take the examination. The examination was computer-based and taken by candidates linked to a network. Ms Latif requested a reader, the examination paper in an unprotected version in Microsoft Word (to enable her to copy it onto her or PMI’s computer, thereby allowing her to see the diagrams and questions using her own software) and additional time. PMI agreed to provide a reader in the examination centre and double time within which to complete the examination. PMI argued that its response was reasonable because Ms Latif had passed the examination by this means. PMI further argued that the computer-related adjustments requested by Ms Latif were unnecessary, costly and posed significant security risks to PMI’s systems - a view with which the Tribunal was somewhat sympathetic - though it suspected it was an ex post facto rationalisation rather than a contemporaneous assessment. The Tribunal, however, criticised PMI for its lack of flexibility and for failing to listen to Ms Latif’s suggestions or consider any other possible alternatives to assist her. The evidence suggested that PMI believed that, once it had put forward adjustments that it considered appropriate, that was the end of the matter and no further suggestions would be considered. In reliance on the DRC’s Code of Practice and authorities in employment cases, the Tribunal emphasised the need to listen to the individual and conduct a proper assessment of his/her circumstances, rather than treating him/her as a member of a generic class (e.g. “the blind”). There were other reasonable alternatives, which were not proposed by Ms Latif, but which could have emerged had PMI listened to Ms Latif and conducted a proper assessment of her specific circumstances (not only her disability but her specific abilities). The onus is not on the disabled person to suggest adjustments. For these reasons, the Tribunal unanimously concluded that PMI had failed to take reasonable steps to prevent Ms Latif being put at a substantial disadvantage. Remedy In considering whether to make an award for injury to feelings, the Tribunal took into account the fact that Ms Latif tried repeatedly, but unsuccessfully, to get PMI to reconsider its position, which may have resulted in anger and frustration. Secondly, she had to take an unnecessarily long examination using a medium with which she was not familiar, which may have resulted in additional anxiety both before or during the exam. On the other hand, Ms Latif passed the exam and PMI’s treatment was an isolated event and not a prolonged campaign. Hence, an amount from the lowest band of compensation for injury to feelings (£500 to £5,000) would be appropriate. The Tribunal awarded £3,000. Lessons for institutions : This case illustrates some simple lessons, many of which we regularly emphasise to our clients: Institutions should:
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never make assumptions about a student’s disability
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ideally, assess the individual student’s needs prior to the admissions stage and keep under review
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consider all possible alternative adjustments where requested adjustments are unreasonable
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have a clear policy on verification of medical conditions where students request a modification of examination conditions or special privileges
This Bulletin contains summaries of complicated issues and should not be relied upon in relation to specific matters. You are advised to take legal advice on particular problems.
key expertise Geraldine Swanton
Senior Associate
geraldine.swanton@martineau-uk.com Martineau's publications are no substitute for taking advice
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