The Equality and Human Rights Commission is the regulator for equality and human rights issues. We intervened in the case of The University of Bristol v Dr Robert Abrahart to provide guidance to the court about the Equality Act 2010. The Act has been in force for over 10 years, so the legal duties contained within it are not new. However, we were concerned that there was confusion about how those duties are interpreted in the higher education sector.
Natasha Abrahart was 20 years old when she took her own life in April 2018. Her lecturers were aware that she was not well, noting that she did seem to have ‘a genuine case of some form of social anxiety’. However, no reasonable adjustments were made to how she was assessed, and she was still expected to attend oral interviews and participate in a group presentation. The University argued that oral communication was a ‘competence standard’, which is specifically excluded from the reasonable adjustments duty under the Equality Act.
The definition of disability is broad. Under Section 7 and Schedule 1 of the Equality Act, disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to complete daily activities. ‘Long-term’ includes likely to last for more than 12 months. Although Natasha Abrahart suffered from a mental illness, physical conditions are also covered by the Act.
The court found that the University had indirectly discriminated against Natasha, discriminated against her as a consequence of her disability, and failed to make reasonable adjustments for her. The court also gave guidance to the sector, which we have distilled into our Advice Note.
The duties on universities are set out in law, which has been in force for approaching 15 years. Further, the duties apply to all students (and staff members) whether they attend university for a single term or for the rest of their student career.
Three of the key takeaways from the judgment relate to knowledge, evidence and competence standards.
In relation to knowledge, if one member of staff at a university knows about a student’s disability, then the whole university knows, and the duties not to discriminate take effect. So, if a student only tells the most junior administrator about their disability, and that staff member doesn’t pass the information on, the university is nonetheless bound by the Equality Act.
With regard to evidence, the judge in the Abrahart case said:
‘…what a disabled person says and does is evidence. There may be circumstances, such as urgency or the severity of their condition, in which a court will be prepared to conclude that it is sufficient evidence for an educational institution to be required to take action.’
This makes clear that it is not appropriate for a university to insist that a disabled student provide a doctor’s letter when the student is clearly severely ill. The duty on the university is to act, even where there is no formal medical diagnosis or evidence. There is no reciprocal duty on the student.
Competence standards are academic, medical or other standards applied for the purpose of determining whether or not a student has reached a particular level of competence or ability. A student has to reach the standard to show that they have attained the necessary level to pass or proceed on their course of studies. However, the way in which a competence standard is measured is still subject to the reasonable adjustments duty, so adjustments must be made to the method of assessment. The court found that the way in which a student’s level of knowledge or understanding, or the way their ability to actually complete the task is measured, is the method of assessment. It said this is rarely, if ever, a competence standard.
Our Advice Note provides some guidance on steps universities can take to ensure that they are complying with the Equality Act.
In addition to complying with the law, there are other potential benefits for institutions in taking those steps. These include providing a better student experience by prioritising student welfare, and reducing pressures on staff. It also allows students to gain valuable experience which will benefit them in working alongside disabled colleagues when they enter the workforce.
However, alongside the benefits to staff and student wellbeing, there are consequences for failing to comply with Equality Act duties.
Higher education students may complain to the Office of the Independent Adjudicator for Higher Education (OIAHE) in England and Wales, or to the Ombudsman in Scotland and Northern Ireland. Complaints can result in financial redress and recommendations for improvement. The OIA also publishes annual statements setting out each institution’s performance.
Students may also bring litigation in the County Court under the Equality Act. This is what Dr and Mrs Abrahart did, and it resulted in the payment of considerable damages to them by the University of Bristol, not to mention the additional costs to the University of defending complex litigation. We anticipate that the spotlight currently shining on this issue may well see an increase in these cases. Litigation can also be reputationally damaging.
There may be issues about breaches of contract where universities fail to make reasonable adjustments when these have been recommended by the Disability Service. From our perspective, the outcome of any such dispute does not detract from a separate and distinct obligation to comply with the Equality Act 2010, which is a distinct cause of action.
Of interest to the higher education sector, the Equality and Human Rights Commission may take regulatory action if institutions fail to comply with the Equality Act. We have a range of legal powers, including investigating organisations where we suspect a breach of the Act. As an alternative to an investigation, the Commission can enter into agreements and action plans with organisations to achieve compliance with the law.
We know that there is a great deal of excellent work taking place across the sector. For example, Oxford University is working on incorporating inclusivity into its teaching practices, with the joint benefits of making the environment more welcoming for disabled students and allowing its Disability Service to act as consultants on the most complex cases. The University of Bristol recently updated its regulations, is undertaking staff training, and continues with its programme of improvement to its wellbeing services. And the Open University has completed a mapping exercise to identify the key ‘crunch points’ faced by disabled students in their education journey and is working to embed robust escalation processes to ensure that adjustments are made when needed.
Reasonable adjustments could help hundreds of thousands of disabled students across the country reach their potential, and we have to make sure those students can access them. We know that the higher education sector is working hard, with limited resources, to address the issue. As Britain’s equality regulator, we will continue to support the sector as universities adapt to meet their legal duties to disabled students.