UK government plans to revamp holiday pay calculation for part-year workers
Out-Law Guide | 09 Jun 2022 | 2:52 pm | 10 min. read
In May 2022 Bristol County Court ordered Bristol University to pay £50,000 damages after finding it had made inadequate adjustments to assessments undertaken by a student with social anxiety who took her own life.
The case followed an earlier Coroner’s Court finding that the local NHS Trust had failed to provide the student with appropriate medical care after she was referred by the University following the first of several suicide attempts. It raises wide and challenging questions about the extent of increasing mental health difficulties amongst young adults and the struggles they face in trying to access appropriate mental health support from the NHS.
It also provides important lessons for higher education (HE) institutions regarding their duties to students with hidden disabilities, and highlights the need for providers to have robust and effective processes to identify these students’ requirements. The decision is a reminder of the extent of the duties HE institutions have to provide effective and targeted learning support and adjustments in cases where the institution has awareness of the student’s disability.
In her second year, Bristol physics student Natasha Abrahart was required to give interviews and undertake oral assessment to explain and justify the outcomes of laboratory experiments. These assessments contributed significantly to her grading on the course.
The court heard that she had struggled to cope with the interviews and her mental health declined to the extent that she was referred to the local NHS Trust. She was diagnosed with chronic social anxiety in 2018 and eventually took her own life.
The court heard that the university had known of Abrahart’s disability from October 2017, that she had disengaged from her studies, missed classes and had performed poorly at an assessment interview and a follow-up interview.
The court was critical of the university’s provision of adjustments and found it liable for breaching its duties under the Equality Act (EA) 2010. It said the university should have offered learning support and adjustments in a positive and anticipatory manner, rather than requiring Abrahart to identify and request adjustments.
The use of interviews to test a student’s capabilities in explaining and justifying the outcomes of experiments was not subject to an exemption in the EA 2010 covering the right of HEs to apply competence standards. The Court held that interviews were a method of testing competencies and therefore adjustments could have been made whilst achieving the same outcomes. It was also held that the marking down at interview had been directly discriminatory of Abrahart.
However, a claim for negligence based on the argument that the university had a general duty of care for the health and well-being of its students, was dismissed.
In the UK statutory protections against discrimination are enshrined in the EA 2010. A key area of vulnerability covered by the EA 2010 is disability, defined as a physical or mental impairment which has a long term and substantial adverse effect on an individual’s ability to carry out day-to-day activities. This covers physical impairment as well as ‘hidden’ issues such as mental health, diabetes or epilepsy.
Discrimination in relation to someone entitled to protections as a result of their protected characteristics is unlawful in most situations. Discrimination can occur both directly and indirectly.
Direct discrimination arises when a person treats another person less favourably than they would treat another because of that person’s protected characteristic, and can occur consciously or unconsciously.
Indirect discrimination can arise in circumstances where a person with a disability is placed at a substantial disadvantage in accessing a service on the same terms as other users due to the blanket imposition of a provision, criterion or practice (PCP) and reasonable adjustments have not been made to overcome any less favourable treatment. Discrimination can also occur if that person is treated less favourably because of something arising from their disability and the provider cannot show that the treatment was a proportionate means of achieving a legitimate aim, as long as they knew or could reasonably have been expected to have known that the person had their disability.
The EA 2010 also protects individuals from discrimination by perception or association, indirect discrimination, harassment, and victimisation.
A provider cannot contract out of any duties under the EA 2010. HE providers are also liable for the acts of all staff acting on their authority, even if the provider was not aware of and did not approve that conduct. The only defence is to show that reasonable steps were taken to prevent the alleged conduct and that the individual directly contravened instructions.
In most cases the liability of a provider, such as a HE, will depend on whether they were aware or reasonably ought to have been aware that the affected individual was disabled. A significant difficulty in cases involving hidden disabilities is the extent to which HE providers can identify students who have mental health difficulties and target support if the student has not received or disclosed a formal diagnosis or is reluctant to engage with the provider’s disability or counselling services.
The Abrahart decision confirms that a HE provider is likely to have duties under the EA 2010 if they had or ought to have had knowledge, even without full disclosure or diagnosis. However, this will require sufficient and visible signs that would be expected to raise concerns among staff without those staff members having received expert skills and training.
An institution needs to be mindful of the possibility that a student who has taken absences due to illness or having difficulty participating in their studies may be disabled, and therefore the duty not to discriminate and to make reasonable adjustments may apply.
If challenged, a provider will be required to show that they considered all the information before them and made reasonable enquiries about whether the student is disabled. They should also take steps to understand what impairments or conditions may fit within the definition of disability in the EA 2010 including hidden disabilities such as depression and social anxiety.
The concept of indirect discrimination is intended to capture circumstances where a student with a disability is treated less favourably due to the blanket imposition of a provision, criterion or practice (PCP).
Some provisions of the EA 2010 impose specific duties on HE providers, for example requiring institutions to take positive and anticipatory steps to ensure that their disabled students are not treated less favourably when accessing teaching and learning or other services.
If a HE provider has a blanket policy which requires a student to comply with or meet a particular criteria this could be indirectly discriminatory and unlawful if its impact on a person with a disability places them at a substantial disadvantage by restricting their ability to access education or achieve an award.
A decision on indirect discrimination requires evidence of a suitable comparator to show the disadvantage or less favourable treatment.
If any barrier to access arises then the EA 2010 places a further obligation to provide a reasonable adjustment on a positive and anticipatory basis to enable the disabled student to overcome that hurdle.
However, the term ‘reasonable adjustment’ is not defined in the EA 2010, and depends on the facts of each case. HE providers are expected to be creative and may be required to address the barrier itself or offer an auxiliary aid as an alternative.
Factors determining whether an adjustment is reasonable include cost, practicality, health and safety, the size of the provider, and whether it will overcome the disadvantage in question.
An additional justification for not making an adjustment may be that the PCP is a proportionate means of meeting a legitimate aim, or lack of knowledge. The concept of HE competence standards which may also be excluded from these requirements.
Although the provider must decide what is reasonable, it must also be able to objectively justify its decision if challenged. A clear audit trail showing evidence of an equality impact assessment is essential. Where there is an alleged health or safety risk a proper risk assessment is likely to be required.
Specifically in the context of education the EA 2010 addresses the question of reasonable adjustments and provides an express exemption for competence standards applied to a course of study. There is no strict legal duty to alter a competence standard in the case of a disabled student.
The EA 2010 defines a competence standard 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”. The act also expressly states that the application of a competence standard is not a PCP. Therefore, as long the competence standard applied to a course of study is robust and can be objectively justified in relation to the learning objectives of the course then there is no strict legal duty to alter such a standard.
Bristol University argued that its use of interviews and oral assessments to test a student’s capabilities in explaining and justifying the outcomes of experiments was a competence standard and subject to the exemption in the EA 2010. However, the court held the interviews were a method of testing competencies and not a competence standard and therefore adjustments could have been made whilst achieving the same outcome.
An example of how regulators expect competence standards to be applied can be found in The Office for Student’s published guidance on the application of competence standards (15 page / 393KB PDF). The guide addresses the context of written English, noting that standards for a particular course will depend on its nature.
The guidance suggests that in the context of a particular assessment, it is good practice for a HE provider to identify what it considers to be the applicable competence standards, to record why it takes this view, and to make this information available to students. This should be done before the course starts, to allow time for the provider to anticipate any necessary reasonable adjustments.
However, as the Abrahart case highlights, there is an important practical and legal distinction between the competence standard itself and a method or process by which the provider tests, examines or assesses a student’s ability to meet that standard. The method of examination is likely to be a PCP and therefore a HE institution may be required to consider making reasonable adjustments to that process if it is aware that a student is subject to a disability which would result in them being treated less favourably.
The court also rejected Bristol University’s argument that the provisions of the EA 2010 are disapplied in relation to assessments. The University’s argument relied on the proposition that assessments are an element of the course curriculum and as such subject to a further exemption under the EA 2010. The judge applied a distinction between the way in which a curriculum is taught and the curriculum itself, but accepted that this could be challenged if the case were to be considered at a higher level.
The court did not consider an HE provider’s additional, general public sector equality duty under the EA 2010, which requires public bodies to reflect equality considerations in the design of all policies and procedures and the delivery of any services. However, it is arguable that the design of policies and procedures relating to the ability for disabled students to access study support and the design and provision of reasonable adjustments also falls within the scope of this wide-ranging duty.
The relationship between a HE provider and a student is governed by a contract of membership setting out the rights and obligations of both parties. There are additional obligations implied into that contract by way of common law and statute. A failing on the part of the provider may give rise to a claim for breach of contract or the common law duty of care (i.e. negligence).
HE providers have a more limited duty of care than schools and colleges, but must ensure that students have a safe environment in which they can live, work and study.
Although there is no legislation at present that sets out a distinct and formal statutory duty on HE providers to safeguard their mainly adult students, the legal framework created by the legislation, contract and the underlying general duty of care created towards staff and students at common law do require HE providers to be mindful of the risks of breaching this duty.
Whether a duty of care arises, or has been breached, will depend on the facts of a case. If a HE provider fails to meet its duty to its students, there is a significant risk of a successful claim for damages arising out of that provider’s negligence.
Central to the question of whether it is fair and reasonable to impose a duty will be the proximity of the relationship between the HE provider in question and the affected student, and the foreseeability of any injury. A further consideration will be whether the HE provider discharged its duty to the standard of care expected.
The extent of the duty of care placed on a HE provider may be increased where a student is regarded as a vulnerable person. This could be because a student is under 18 and regarded as a minor, or due to a student’s mental health or physical disabilities.
In the Abrahart case, the judge found no duty was breached, although he said that if there had been a duty of care it would have been breached for the same reasons as the claim which succeeded under the EA 2010 Act.
The learning from Abrahart is that while HE providers may still have limits around their wider duty of care to their students, they still have considerable obligations to proactively support disabled students under the EA 2010.
The practical outcome is that all HE providers should urgently conduct robust root and branch reviews of the policies and procedures they presently have in place to assist them in identifying students who have mental health difficulties and ensure that they are fit for purpose. This requires the HE to satisfy itself that it provides for staff to proactively provide targeted support to disabled students.
This includes all academic engagement, fitness to study policies as well as all related policies and guidance covering learning support including additional considerations and adjustments to study and assessment.
HE providers should also consider additional or refreshed staff training on identifying concerns, ensuring staff and students are proactively signposted to advice and support and properly engage with the depth of sector guidance available around balancing core course competencies against ensuring disabled students are not treated less favourably, or at risk of unlawful discrimination, on grounds of their disability.
17 Oct 2018
UK government plans to revamp holiday pay calculation for part-year workers