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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

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Exams: legal rules

This page gives a broad outline of the rules under Equality Act 2010 dealing with post-18 exams. For an overview and more examples, see Exams. To be protected by the Act, the person usually needs to have a 'disability' as defined.

Introduction

There are at least three sets of rules in the Equality Act covering exams. However they have similarities, and will often lead to the same result. This page focuses on

There are separate Equality Act rules - not covered on this website - for GCSEs, A levels, and some other exams.

What is being assessed versus means of assessment

To a large extent the normal discrimination rules apply to exams, but with some modifications. For most adult exams, the Equality Act applies differently to:

  • the competence standards being assessed, in other words the knowledge and skills being tested (see below for the technical definition of 'competence standard'); and
  • the way in which these are assessed.

It is generally easier to obtain adjustments to the way standards are assessed, than to what standards are being assessed.

Adjusting the means of assessment

The way standards are assessed is largely subject to the Equality Act in the normal way. In particular the duty to make reasonable adjustments can usually apply.

From draft non-statutory Code of Practice
A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This is a reasonable adjustment for the university to make.
Para 10.24, Consultation draft Code of Practice on Higher and Further Education. When finalised, the code is likely to be issued as a non-statutory code.

What is being assessed can restrict what adjustment it is reasonable to make. For example, if spoken communication is being assessed, it will not be reasonable to change an oral exam to a written one. If ability to work at speed is being assessed, this may affect whether or how far time limits can be adjusted.

From previous Statutory Code of Practice
An oral examination for a person training to be a Russian interpreter cannot be done in an alternative way, e.g. as a written examination, because the examination is to ascertain whether someone can speak Russian.
2007 Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies. Para. 8.31 . Referred to previous legislation, but still a useful example.

Case: time limits
The Court of Appeal did not have to decide whether the time requirement for a professional law exam was a 'competence standard' (see next heading) and so fell outside the duty to make reasonable adjustments. However, it may be that 'ability to work under time constraints' could be the competence standard, so the way this ability is assessed, including the time limit, might still be subject to the reasonable adjustment duty. (NB: Even if the time requirement itself were a competence standard, it could be subject to the objective justification test - see next heading.)
Burke v College of Law and Solicitors Regulation Authority (link to stammeringlaw.org.uk), Court of Appeal, 2012.

Competence standards - what is being assessed - can restrict what reasonable adjustments are possible. But there is also the question of whether it is 'objectively justified' to assess whatever is being assessed. That is dealt within under the next heading:

Competence standards - what is being assessed

For the adult exams dealt with on this page, the reasonable adjustment duty does not apply to competence standards (EqA Sch 13 para 4(2), EqA s.53(7)). There is no 'reasonable adjustment of what is being assessed in the exam.

However, competence standards may be subject to the objective justification test. A competence standard can be open to challenge if, broadly, it disadvantages people with a particular disability and is not shown to be objectively justified.

So there is the question whether it is justified to test particular oral skills (such as fluency, or clarity or speed of speech). Or whether it is justified to test writing skills, or skills in reading or understanding, or ability to do these things within a short time. This will depend on the context.

In fairly limited cases, there may also be direct discrimination in which case no justification defence is available.

Example
It may well be appropriate to remove 'fluency' or 'clarity of speech' from assessment criteria. These might be replaced with the concept of 'communication' (if justified) encouraging assessment of wider skills of interaction.
(There is more on assessment criteria in the 'Stammering' section of Exams: Links on adjustments in exams.)

Competence standards: types of claim

For professional or trade bodies (as in the Burke v Law College case above), the only type of Equality Act claim allowed to challenge a competence standard is indirect discrimination (EqA s.53(7)), so the technical preconditions for indirect discrimination need to be met. Indirect discrimination is subject to the objective justification defence, so the person setting the exam has a defence if they show the competence standard is justified.

For exams of universities and further education colleges, competence standards can also be challenged under other types of discrimination, in particular discrimination arising from disability which is again subject to the objective justification defence, and possibly sometimes direct discrimination for which there is no justification defence.

Competence standards: definition

Technically a competence standard is defined as "an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability."

Exams: Universities, colleges and professional/trade bodies

Universities etc

The rules on universities etc apply to universities, colleges in the further education sector (in England and Wales), colleges of further education (in Scotland), and various other institutions (EqA s.91 with s.94).

There is protection with regard to being awarded a qualification even if one is not a student at the university etc (EqA s.91(3)).

If a case goes to court, it will generally be to the County Court (or Sheriff Court in Scotland).

Professional/trade bodies

The rules about professional/trade bodies regarding qualifications etc are under ss.53-54 EqA. They apply to a 'qualifications body', namely an authority or body which can confer a 'relevant qualification'. This is defined as "an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession." There is a list of exceptions from the definition (for example, universities etc within s.91).

The Explanatory Notes to the Equality Act (para 187) say these rules include any body which confers a diploma on people pursuing a particular trade (for example, plumbers), even if the diploma is not strictly necessary to pursue a career in that trade but shows that the person has reached a certain standard.

Claims under these rules for qualifications bodies normally go to the Employment Tribunal rather than County Court. However for some bodies, such as the General Medical Council, there may be a specific statutory appeals process which applies instead of the Employment Tribunal. (EqA s.120).

The somewhat different rules on 'employment services' (s.55-56 EqA), though still within the employment part of the Equality Act, may apply to a body which is not a 'qualifications body' but which carries out an assessment related to conferment of a 'relevant qualification' (s.56(2)(i)).