Burke v The College of Law & Anor

This is an appeal by Mr Burke, a disabled person, against a decision of the Employment Appeal Tribunal given on 8 March 2011. It dismissed an appeal by Mr Burke from a decision of the employment tribunal given on 2 September 2009 that the College of Law (the College) and the Solicitors Regulation Authority (the SRA) had not failed in their duty under the Disability Discrimination Act 1995, now the Equality Act 2010, to make reasonable adjustments to their examination conditions for the Legal Practice Course (the LPC) to prevent Mr Burke from being placed at a substantial disadvantage in comparison with persons who are not disabled.

In June 2001 Mr Burke, a history graduate and qualified teacher, was diagnosed as suffering from multiple sclerosis. In 2005 he decided on a change in career from history to law. The following year he completed the academic stage of legal training by passing the Common Professional Exam and applied for the LPC at the Guildford branch of the College.

One of the adjustments to the LPC examination conditions sought by Mr Burke was that he should have additional time to sit the various examination papers. The respondents agreed to give Mr Burke additional time although, as will be seen, not as much as he asked for, but also contended that the requirement that a candidate should complete each examination in a particular time was a competence standard within the meaning of s.14B of the 1995 Act with the result that the obligation to make reasonable adjustments did not apply. The employment tribunal accepted this contention and the Employment Appeal Tribunal upheld this decision.

Another adjustment sought by Mr Burke was that he should be allowed to sit the examinations at his home in Brighton rather than at the Guildford premises of the College. The respondents recognised that requiring Mr Burke to travel from his home to Guildford each day would place him at a substantial disadvantage and so they agreed to pay for him to stay at the local YMCA. The employment tribunal considered this was a reasonable adjustment. Before the Employment Appeal Tribunal, Mr Burke also contended that the College should have found better accommodation for him. But, as the Employment Appeal Tribunal found, this argument had no merit because Mr Burke had seen the accommodation in advance and had made no complaint about it during the course of his examinations.

Mr Burke’s application for permission to appeal to this court was refused by Elias LJ on the papers. He considered that the employment tribunal was plainly correct to treat the time requirement as a competence standard. Further, the respondents had complied with their duty to make reasonable adjustments to the site requirement, and it was unrealistic and unreasonable to suggest that a reasonable adjustment required the College to allow him to sit his examinations at home.

Mr Burke renewed his application for permission at an oral hearing before Lewison LJ. In his judgment, Lewison LJ considered it was clear that the ability to work under a time constraint was a competence and that an appeal against that finding had no real prospect of success. But that was not the end of the matter because it did not necessarily follow that sitting the LPC examinations under the particular time constraint the respondents generally imposed was a competence standard. He put it this way at [8]:

“However, Mr Nicholls had another more subtle point. Accepting that the ability to work at speed under time pressure is part of the competence which the examination is designed to test, the question then is: how do you test the ability to work at speed under time pressure? That, he said, is a mode of testing and not the standard itself. If the mode of testing the ability to work under time pressure is part of the way in which that particular competence is assessed, then in principle it is capable of being subject to the statutory duty to make reasonable adjustments. Put in that limited way, I consider that that point does have a real prospect of success. It is, I think, a general point applicable to examinations in general and that in my judgment provides sufficient reason for the grant of permission limited to that ground, even though this would be a second appeal.”

Accordingly Lewison LJ granted permission to appeal on the time requirement issue.

At the hearing of the substantive appeal before this court the respondents submitted the appeal was without merit and should be dismissed for two reasons. First, the decisions of the employment tribunal and the Employment Appeal Tribunal were plainly correct because no distinction could be drawn in this case between the competence standard and the mode of testing it, and so no reasonable adjustments needed to be made. Second, the employment tribunal went on to consider matters in the round and came to the conclusion the respondents had in fact made reasonable adjustments in any event.

It appeared to this court at the hearing that a finding in favour of the respondents on either point would be dispositive of the appeal. Counsel for all parties agreed this was so and accordingly we invited argument on the second point first. Having heard that argument, we formed the view that it was not necessary to hear argument on the first point, and we so indicated.

Section 14B of the 1995 Act imposes upon qualifications bodies, which, it is accepted, the respondents are, an obligation to make reasonable adjustments to particular provisions, criteria and practices they apply in order to prevent disabled persons being placed at a substantial disadvantage in comparison with persons who are not disabled. It reads, so far as relevant:

“14B Qualifications bodies: duty to make adjustments

(1)

Where –

(a)

a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body; or

(b)

any physical feature of premises occupied by a qualifications body,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the qualifications to take such steps as is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

It is to be noted that the duty to make reasonable adjustments does not apply to competence standards. These are defined in s.14A(5) as:

“…. an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.”

I must now give a little more background so the decisions of the employment tribunal and the Employment Appeal Tribunal may be seen in context.

Before Mr Burke began the LPC course, he liaised with the Special Needs Tutor at the College and agreed a learning contract which included a number of adjustments.

Part way through his final examinations, in February 2007, Mr Burke sought to re-negotiate those adjustments in the form of a second learning contract. The College duly agreed various further adjustments, including additional time and special arrangements for the various examinations Mr Burke was due to take in August 2007.

In September 2007 Mr Burke raised the possibility of the College making yet further adjustments. Specifically he asked that he should be allowed to sit his further examinations unsupervised and at home in light of his concerns that he would find it difficult to travel each day from his home to Guildford; that he lacked the necessary resources to stay in Guildford for the examination period; and that he had fatigue and memory problems as a result of his condition.

On 21 January 2008 the College offered further adjustments for the examinations Mr Burke was due to take in February. Specifically it offered to arrange and pay for accommodation for Mr Burke in Guildford for the examination period. It also offered to split each examination and to allow Mr Burke to sit it over two days, subject to his signing a confidentiality agreement, with the result that the whole examination period would be extended substantially.

On 13 February 2008 Mr Burke signed a further learning contract which set out all the adjustments he had agreed with the College for the examinations he was about to sit. They were:

a.

60% extra time;

b.

May hand write or use an amanuensis (who may also be required to act as a reader) or use a computer (to be supplied by the College);

c.

Stop the clock limited to 15 minutes per hour or pro-rata (based on the extended time) to be taken as and when required;

d.

Extra desk;

e.

High backed chair with adjustable arms;

f.

Own room;

The examination period lasted from 18 to 29 February 2008 and the examinations were split to ensure that none lasted for more than two hours. Unfortunately, and notwithstanding these adjustments, Mr Burke did not pass. He applied to the LPC Board of Examiners for a concession but was notified on 8 March 2008 that his application had not been successful. As he had now failed the Business Accounts examination three times, he was told he had failed the LPC and was not entitled re-sit the examinations again.

At a case management discussion on 16 December 2008, Mr Burke relied on three provisions, criteria or practices, namely that the LPC examinations must be taken under supervision, at the premises of the College and within a time of three hours. He also set out the adjustments which he now contended the respondents should have made in order to comply with their duty under the 1995 Act:

(1)

That Mr Burke be allowed unsupervised exams for the compulsory and elective units and given a time of 3 days per examination with the following detailed arrangements:

a.

That Mr Burke sign an undertaking as to confidentiality and cheating and/or swear an oath before a magistrate;

b.

That Mr Burke be permitted 3 clear days at home to complete each examination;

c.

Mr Burke to collect each examination on day 1, complete the examination over days 2-4 and return completed examination on day 5 to collect the next examination paper;

d.

Both compulsory and elective units to be included within this arrangement; and

e.

Examination to be taken before other students to further reduce any risks or cheating, or

(2)

That Mr Burke be given supervised examinations for the compulsory and elective units at his home in Brighton for which he will be given a maximum of 4 days per examination. The following detailed arrangements would apply:

a.

The supervisor should be provided at the College’s expense and should be available at the Mr Burke’s home from 8.00am to 4.00pm;

b.

Mr Burke should be allowed to take rest and comfort breaks as well as having access to and egress from his flat, as and when required;

c.

The examination scripts and answer papers should either remain under the supervision of the examination supervisor at all times, or be left in a secure box at Mr Burke’s flat to which only the examination invigilator has access (in which case the secure box should be supplied by the College);

d.

It should be the responsibility of the examination invigilator to bring the examination materials with him/her on the first day for that particular examination and either take them away or, in the alternative, leave them in a secure box, supplied by the College to which only s/he has access, at Mr Burke’s home address.

It is apparent that the adjustments for which Mr Burke contended went a considerable way beyond those he had agreed with the College in his learning contract of 13 February 2008.

The hearing of Mr Burke’s claim before the employment tribunal took three days from 22 to 24 April 2009. The tribunal heard evidence from Mr Burke. It also heard evidence from a series of witnesses on behalf of the respondents, namely Ms Diana Van der Klugt (the Senior Lecturer and Special Needs Tutor), Ms Lorraine Davies (the Deputy Director Vocational and Head of the LPC) and Mr Gregor Douglas (the Director of Registry Service and Academic Registrar) for the College; and Ms Clare Gilligan (the Head of the Education and Training Unit) and Ms Calvert (the Education and Training Officer) for the SRA. It was therefore well equipped to understand the nature of the LPC and its purpose.

The employment tribunal described the LPC course in these terms:

“The LPC is a vocational course designed to prepare students for practice. The guidance for those enrolling on the LPC (doc 245) explains the distinction between the academic study of Law and the preparation for practice as a Trainee Solicitor, i.e. the vocational aspects. The difference in approach of the LPC in comparison to a Law Degree or Graduate Conversion Course was stressed and it was said that the teaching methods and assessments in the LPC are designed to replicate transactional aspects and the day-to-day working life of a Solicitor.

“Busy practitioners simply do not have the time to preface every new problem which you may encounter as a Trainee with a couple of lectures and perhaps a tutorial before you can reasonably be asked to prepare some advice on the matter”.”

A little later it turned to the purpose of the LPC examinations:

“28.

The purpose of the examinations, or supervised assessment (the term was used interchangeably) is to assess the ability of the candidate to demonstrate their competence and capability in the subject matter under time pressure. The papers are drafted to enable a candidate to demonstrate skill and knowledge and marshal those attributes under time pressure as an essential part of working as a Solicitor. This is important because of the workload of most Solicitors and the widespread use of time recording as a basis for calculating Client charges, firm profitability and fee earner productivity.

29.

The examinations are intended to replicate the transactional aspects of practice in acknowledgement of the fact that Solicitors and their Trainees often work under pressure and extreme time constraints and need to react quickly to the needs of a Client, or other deadlines – whether imposed by the client, a Court or Tribunal or another party to a commercial transaction for example.

30.

The College of Law provides for open book examinations so candidates are able to access appropriate texts and notes in recognition that life in practice is not a pure memory test, but a Solicitor is expected to carry a basic body of knowledge within his or her memory and be able to access further or detailed information quickly.

31.

The Solicitors Regularity Authority lays down that examinations for the LPC must be at least 3 hours long, so that enough of the syllabus and aspects of the Course can be tested in exam conditions and there is enough material for the exam to be sufficiently testing. By setting a minimum length for the exam, it does not imply that institutions may give unlimited time to students in which to take the exam.

32.

The First Respondent requires the exams to be supervised in order that it is the candidate’s own skills and knowledge which are tested and to preserve the integrity and transparency of the process. It is to avoid any risk, or danger of collusion, plagiarism or cheating or unfounded accusations of such things.”

In the section of its decision headed “Conclusions”, the tribunal then addressed the adjustments sought to be made to the supervision, location and time requirements.

So far as supervision was concerned, the tribunal said it was difficult to assess this in isolation from the other adjustments sought by Mr Burke, but looked at on that basis the supervision requirement did not place Mr Burke at a substantial disadvantage in comparison with persons who were not disabled. Further, removal of the requirement would not have been a reasonable adjustment in any event. Effective supervision was necessary to protect against cheating and to maintain the integrity and transparency of the assessment process.

As for location, the tribunal said that this was again difficult to consider in isolation. However, it accepted that travelling from Brighton each day would have placed Mr Burke at a substantial disadvantage because his condition led to fatigue and stress. Nevertheless, it considered the problem was addressed by the arrangements made by the College to have Mr Burke accommodated at the YMCA for the 12 day examination period. The accommodation was adequate and Mr Burke had stayed in Guildford while taking the course LPC itself. The respondents had therefore complied with their duty to make reasonable adjustments.

That brings me to time. The tribunal held that this was a competence standard because the requirement was imposed in order to determine whether candidates had the ability to work at speed under time pressure. That of course removed any duty to make reasonable adjustments in relation to it. Nevertheless, the tribunal went on to look at matters in the round. Considering initially the location requirement but then the matter more generally, it held:

“47.

… The financial costs of arranging invigilation at Mr Burke’s home over a protracted period would be substantial, assuming the invigilators would be willing to undertake the task. It would be impracticable to organise – the list of suggestions by Mr Burke involving oaths before the magistracy and so on are illustrative of the problems associated with it. The disadvantages identified by Mr Burke – stress, fatigue and tiredness – could be reduced by the measures taken by the Respondent, they did not require Mr Burke to take the exams at home. If it were a case of a disabled person requiring particular equipment available in his home that would not be moved to an examination centre, the position might be different. Here it is general tiredness and fatigue – matters easily met by the accommodation provided near the exam site and the splitting of the exams and extension of the exam timetable together with the breaks etc provided by the Respondents.

48.

When looked at in the aggregate, what Mr Burke was seeking was clearly unreasonable. He raised legitimate concerns about the fatigue he would experience from the unadulterated exam format. The First Respondent met his concerns with extensive adjustments – not only the ongoing arrangements during the Course which were not relevant for the purposes of the decision – but were specifically in relation to the re-sit examinations in February 2008 as set out in paragraph 20 above. Spreading the exams over the course of several days, breaks, extra time added for him to take each exam and so on.

49.

Mr Burke was treated with courtesy, dignity and respect in all his correspondence and dealings with both the First and Second Respondent. The learning contract was revised and reviewed periodically at Mr Burke’s request and the First Respondent was open to the suggestion of adjustments and how these could best meet the disadvantages experienced by Mr Burke on account of his disability.”

On appeal to the Employment Appeal Tribunal, Mr Nicholls, who appeared on behalf of Mr Burke, contended that the employment tribunal fell into error in addressing the time and location requirements. For the purposes of this further appeal, I need only address the former.

Mr Nicholls argued that the employment tribunal was wrong to conclude that the respondents’ time requirement was a competence standard and that in so deciding it failed to ask itself the right question, namely whether completion of the examination in the set time was a standard which the respondents apply in order to assess competence.

The Employment Appeal Tribunal rejected that submission. It held the employment tribunal asked the right question and arrived at the correct answer. In reaching that conclusion it addressed the fact that the respondents had in fact agreed adjustments to the time requirement:

“22.

…. The fact that additional time is granted within which to carry out the exam does not of itself mean that time was not a competency standard, for these two reasons. First, the fact that an adjustment is made is of no evidential value. It does not mean that a matter is not a competency standard. The Respondent is and was entitled to make adjustments to competency standards and did so. However, that does not automatically mean that it was required to do so by virtue of the DDA. Second, there is a clear distinction to be drawn between giving a candidate some extra time, such that the nature of the examination (and competency standard) is maintained, and giving such an amount of extra time so that the examination is no longer testing what it is intended to test (in this case the ability to work under time pressure).

23.

In this case the evidence of Claire Gilligan apparently was that any extension of time in excess of 100% of the original examination time would not have maintained the integrity of the examination process. This was apparently said in oral evidence: see Ms Prince’s written submissions to the Tribunal: EAT bundle table 20 paragraph 20. Mr Nicholls did not challenge this submission which is contained in paragraph 13 of Ms Prince’s skeleton argument.”

Interestingly, the “Summary” of the decision also included this paragraph:

“The EAT upheld the Employment Tribunal finding that the time requirement was a competency standard under s.14(A)(5) of the SRA and as such there was no requirement to make a reasonable adjustment. In any event adequate reasonable adjustments had already been made. A submission as to the site requirement based on Meek was rejected as it was not argued before the ET.”

The question which arises is very simple: did the employment tribunal decide that the adjustments made to the time requirement were reasonable?

In my judgment the employment tribunal did indeed so decide. I think it is clear from the passages of the decision to which I have referred that it considered it was difficult to consider the various adjustments the respondents had made to the supervision, location and time requirements in isolation. Each had a bearing on the other two. Hence it was perfectly natural and entirely appropriate for the tribunal to consider the adjustments as a whole and that is what it proceeded to do at [47]-[49]. Here it explained that Mr Burke’s condition caused him stress, fatigue and tiredness but these could be reduced by the package of adjustments which the respondents had made, including the provision of accommodation, the splitting of the examinations, the extension of the examination timetable and the breaks of 15 minutes each hour.

Mr Nicholls, who appeared once again on behalf of Mr Burke, submitted that any engagement by the employment tribunal with the reasonableness of the adjustments to the time requirement would have required some analysis of the evidence and that such analysis is not to be found in the decision.

It is well established that a decision of a tribunal such as the employment tribunal must contain an outline of the story, a summary of the basic factual conclusions and a statement of the reasons which has led the tribunal reach the overall conclusions which it has; the parties are entitled to know why they have won or lost; and there should be a sufficient exposition of the facts and the reasoning to enable the Employment Appeal Tribunal to see whether any question of law arises: Meek v City of Birmingham District Council [1987] IRLR 250 (CA). But, as the decision in Meek also makes clear, such a decision is not required to be an elaborate formalistic product of refined legal draftsmanship.

In my judgment the employment tribunal did engage with the issue of the reasonableness of the adjustments to the time requirement. It identified the effects of Mr Burke’s disability and how they placed him at a disadvantage compared to others and it explained that the various adjustments made by the respondents, when taken together, addressed those effects. The tribunal went on to explain that the respondents treated Mr Burke with courtesy, dignity and respect throughout, that they were always open to suggestions of appropriate further adjustments and that they reviewed and revised his learning contract periodically at his request. In doing so they met his legitimate concerns.

I am reinforced in this view by the approach taken by the Employment Appeal Tribunal. I think it is tolerably clear from the case summary referred to at [31] above that it too considered that reasonable adjustments had been made to the time requirement.

Further, at [22]-[23] of its decision, the Employment Appeal Tribunal reasoned that, beyond a certain point, provision of extra time would deprive an examination of the kind in issue of any value, and here the evidence was that such a point would be reached if time were to be extended by more than 100% of that originally allocated. In these circumstances it seems to me that a finding that reasonable adjustments had been made was inevitable.

I would therefore dismiss this appeal. In the circumstances it is not necessary to decide the particular and interesting question whether the time requirement is a competence standard and, since we have not heard argument on the point, I prefer to express no view about it.

I agree.

I also agree.