University’s appeal against Natasha Abrahart discrimination ruling rejected

Julian Sladdin, a universities and equalities law expert, and Hannah Frost, who specialises in health and safety law, both of Pinsent Masons, were commenting after the High Court dismissed an appeal raised by the University of Bristol against an earlier judgment that had found it responsible for disability discrimination against one of its students, Natasha Abrahart, who died by suicide in 2018.

Natasha Abrahart was a former physics student who was aged 20 when she died. She suffered from depression and had social anxiety disorder, which qualified her as a disabled person under the Equality Act 2010.

After Natasha’s death, her father, Dr Robert Abrahart, raised a claim against the University of Bristol for unlawful discrimination, rooted in his belief that the institution had failed to make reasonable adjustments to requirements it imposed on his daughter around her participation in oral assessments, to account for her disability. This followed earlier proceedings against the local NHS Trust for alleged failings in her mental health care. Dr Abrahart and the NHS Trust reached a settlement before the matter reached court.

In her second year, 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. However, she struggled to cope with the interviews and her mental health declined to the extent that she was referred to the local NHS Trust.

In 2022, Bristol County Court upheld Dr Abrahart’s claim and ordered the university to pay £50,000 in damages. It considered that the university had at least constructive knowledge of Natasha 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. It was critical of the university’s provision of adjustments and found it liable for breaching its duties under the Equality Act. It said the university did not need a formal diagnosis before it offered learning support and adjustments. It also should have acted in a positive and anticipatory manner, rather than requiring Natasha Abrahart to identify and request adjustments herself.

The University of Bristol raised an appeal against the Bristol court’s order before the High Court. It argued, among other things, that it had no duty to adjust the requirements of its physics course under the Equality Act and that that it acted reasonably, and that its approach was justified given the importance of maintaining academic standards and fairness to other students.

In respect of its claim that no duty arose under the Equality Act, it cited an exception to the Act’s rules that means higher education providers are not obliged to provide reasonable adjustments for disabled persons in respect of competence standards – 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. It said the oral assessments that formed part of the physics course fell into this category rather than simply being a method of testing a competency.

The University of Bristol further claimed that Bristol County Court had been wrong to find that it knew or ought to have known enough about Natasha Abrahart’s situation to be obliged to make reasonable adjustments for her.

High Court judge Mr Justice Linden, while critical of some of the reasoning adopted by the original County Court judge, rejected the appeal raised by the University of Bristol. Among other things, he upheld the Bristol County Court’s findings that there were other ways that the University of Bristol could have achieved the purpose of its oral assessment requirements and that it had been under a duty under the Equality Act to make reasonable adjustments for Natasha Abrahart’s situation.

Mr Justice Linden, however, did not make a ruling on a matter cross-appealed by Dr Abrahart. He had unsuccessfully claimed before the Bristol County Court that, in addition to being responsible for unlawful discrimination under the Equality Act, the University of Bristol had acted in negligence owing to a breach of what Dr Abrahart claimed was a common law duty of care it owed to the health and wellbeing of his daughter.

Mr Justice Linden said it was unnecessary for him to rule on Dr Abrahart’s cross-appeal relating to the negligence claim given that he had upheld the Bristol court’s findings in respect of unlawful discrimination.

Julian Sladdin of Pinsent Masons said that, although the High Court did not address the wider question of negligence and whether the university had breached its duty of care, the case is still an important one for the sector.

Sladdin said: “In dismissing the appeal, the High Court has provided important clarification of the duties which higher education providers owe to their students under the Equality Act and the steps that they are expected to take to ensure that they are not treated less favourably in their studies. In particular, the court has confirmed the need for institutions to be more proactive in how they identify students who may be suffering from conditions such as anxiety even without a formal diagnosis.”

“The case also highlights the extremely complex decision making that higher education providers need to take in relation to the question of whether a form of assessment is so inextricably linked to a required competency that it may amount to a competency standard in itself rather than simply just a method of testing a competency. It seems from the case that this is still an area where there remains some disagreement which the court has not entirely resolved. There remain practical questions regarding the extent to which any competency exemption can be measured or justified and in turn if an adjustment is likely to be considered reasonable whether the mode of assessment should be dispensed with or adjusted. Universities will need to have very clear audit trails explaining the academic rationale for their decision making given the potential risk of challenge following this case,” he said.

“The judgment is also a reminder to universities that their policies and procedures, including those addressing the disclosure of disabilities and the implementation of reasonable adjustments should be carefully followed to ensure fair and proper process and compliance with the legal and contractual duties owed to students. However, universities need to have, and where appropriate exercise their, discretion in deviating from strict procedures in certain circumstances. This was summarised by the judge when he said that the policies and procedures universities develop and apply are not the law they are subject to,” Sladdin also said.

Last year, families of students who died by suicide while at university petitioned parliament to change the law to impose a new duty on universities to protect their students from reasonably foreseeable harm, caused by either direct actions or a failure to act. Currently, while universities owe a duty of care to their staff and to students under the age of 18 in higher education, they are under a more limited duty of care to their students than colleges and schools are.

The UK government has opposed the move to impose a new duty of care on universities in respect of their students and instead advocated for other initiatives, such as universities adopting the Mental Health Charter developed by the charity Student Minds.

Hannah Frost of Pinsent Masons said: “While the judgment does not develop the debate around the duty of care owed by universities to students any further, we expect that the impact of the wider decision will mean that there will be a continued focus on the mental health and disability support provided by universities to students in inquests concerning student deaths by suicide and in the courts more generally in cases similar to this one. Universities should therefore ensure that their systems and procedures in relation to student welfare and disability support are properly implemented, regularly reviewed, and updated in line with sector guidance.”