Sun, 26 Feb 2012
By Tim Sheppard
JUSTIN BURKE v (1) COLLEGE OF LAW (2) SOLICITORS REGULATION AUTHORITY
In Justin Burke v (1) College of Law (2) Solicitors Regulation Authority  EWCA Civ 37, Mr Burke was (in 2001) diagnosed as suffering from multiple sclerosis. He was and is disabled as defined under the Disability Discrimination 1995 Act (“DDA 1995”). In 2005, Mr Burke 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 College of Law.
Mr Burke sought various adjustments to the LPC examinations, including the opportunity to sit the exams unsupervised at home and the provision of extra time. In relation to extra time, the College of Law and the Solicitors Regulation Authority (the “Respondents”) agreed to give Mr Burke 60 percent extra time, along with up to 15 minutes per hour for rest breaks. The Respondents agreed to most of the adjustments sought by Mr Burke, which were recorded in a series of learning contracts.
Mr Burke failed a number of the examinations, some on 3 occasions such that he was informed that he had failed the LPC and was not entitled to any further re-sits. Mr Burke then brought a claim to the Employment Tribunal (“ET”), alleging a failure to make reasonable adjustments on the part of the Respondents in respect of the requirement to sit the examinations under supervision; at the First Respondent's site and within a time of 3 hours (the 'Time Requirement').
Before the ET, the Respondents contended that they had complied with the duty to make reasonable adjustments in respect of the examination requirements at issue. Importantly for present purposes, the Respondents also argued that the Time Requirement was a ‘competence standard’ within the meaning of s.14B of the DDA such that the duty to make reasonable adjustments did not arise in any event.
Employment Tribunal ruling
The Employment Tribunal accepted this contention. It held that:
“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...
40. The timing requirement is however a competence standard. It falls within the definition of “other standard” in s.14A(5) of the DDA 1995, which was applied by one or other or both the First and Second Respondent for the purpose of determining whether all the LPC candidates had the particular competence or ability to undertake work under pressure of time within a time limited period. The ability to work at speed under pressure is of itself a competence. The reasonable adjustment duty does not apply to it
The ET went on to find that:
“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 – 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, the Employment Appeal Tribunal upheld the decision of the ET. Mr Burke was (eventually) granted leave to appeal to the Court of Appeal on the Time Requirement/competence standard point.
Section 14B of the DDA 1995 (now the Equality Act 2010, section 53) imposes a duty on Qualification Bodies (such as the Respondents) to make reasonable adjustments to the 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.
Section 14B (1)(a) of the DDA, provides that the duty to make reasonable adjustments does not apply to ‘competence standards’, however. 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.”
The Decision of the Court of Appeal
Permission to appeal was granted on the following narrow 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.”
The Respondents submitted the appeal should be dismissed on the basis that the decisions of the ET and the Employment Appeal Tribunal were correct because no distinction could be drawn between the competence standard and the mode of testing it. Secondly, it was also contended that the ET had considered matters in the round and came to the conclusion the Respondents had in fact made reasonable adjustments in any event.
The Court looked at the second argument first. It held that by looking at the adjustments provided in the round and holding that they were reasonable, the ET had in effect decided that that the adjustments made to the Time Requirement were reasonable. The decision of the ET on the point was compliant with the requirements of Meek v City of Birmingham District Council  IRLR 250 (CA). Accordingly, the appeal was dismissed without the need to determine the ‘competence standard’ point.
Mr Burke is, however, seeking leave to appeal on the point (direct) to the Supreme Court. The application for permission to appeal is partly based on the ground that the competence standard issue is a matter of general public importance and the instant case is the only authority on the meaning of a ‘competence standard’.