Background
In 2022 a survey by the mental health charity Student Minds found that over half of students surveyed reported they had a current mental health issue, and one quarter reported they had a diagnosed mental health condition. The wellbeing of students, particularly their mental health, is a high-profile issue. It is of significant concern not only to students and their families but also to the higher education sector.
The case of The University of Bristol -v- Dr Robert Abrahart arises from tragic circumstances. Natasha Abrahart was a 20-year-old student at Bristol University in the second year of a physics degree. She suffered from depression and Social Anxiety Disorder, the effects of which amounted to a disability under the Equality Act 2010 ("the Act"). Her conditions substantially impaired her ability to participate in oral assessments, in particular interviews and a presentation that was a mandatory part of one of her degree modules. Sadly, Natasha took her own life on the day of the presentation.
Natasha's father, Dr Robert Abrahart, was successful in bringing a case for disability discrimination against the University, in particular for their failure to make reasonable adjustments. He argued that the University should have removed or adjusted the oral assessment requirements of the module, so that they no longer caused Ms Abrahart the level of anxiety and distress from which she suffered. The University had continued to require her participation, marked her down for poor performance and penalised her when she did not attend. Dr Abrahart also alleged negligence on the part of the University.
The County Court found the University had discriminated against Ms Abrahart, although the claim in negligence was dismissed on the basis that the University did not owe Ms Abrahart any duty of care. It was found that the University knew that Ms Abrahart was unable to participate for mental health reasons beyond her control - she had a known history of social anxiety, and the university staff were aware that she had either missed or struggled to participate in oral assessments previously. The University appealed to the High Court against the findings of discrimination, primarily relating to the Universities actual or constructive knowledge of Ms Abrahart's condition and whether any discrimination was justified. Dr Abrahart appealed against the negligence finding.
High Court judgement
The High Court upheld the findings of disability discrimination. It re-iterated that, for higher and further education institutions, the duty to make adjustments is anticipatory. There is an expectation that adjustments that might be reasonable will be proactively considered, regardless of whether or not an issue has yet arisen in relation to a particular individual and a relevant matter, or adjustments has been requested.
The University's argument that it required expert advice before adjustments could be made to the assessment procedure was rejected. It was aware that Ms Abrahart had genuine mental health difficulties and that they impacted her ability to participate in oral assessments. Reasonable adjustments should therefore have been made. The University's knowledge of Ms Abrahart's condition along with the conclusion that no legitimate justification defence had been identified in the County Court for either the discrimination arising from disability, or the indirect disability discrimination claim meant the Universities appeals on those matters also failed.
Core competency or method of assessing core competency?
One of the significant issues upheld by the High Court in this case was whether "the assessment of a student's ability to explain laboratory work orally, to defend it and to answer questions on it" was a "core competency of a professional scientist". This argument relies on an exception set out in Schedule 13 of the Equality Act 2010 that says that the duty to make reasonable adjustments does not apply to a competence standard, which is "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."
On the evidence before it the County Court found the need for assessments to be carried out orally was not a competence standard. The purpose of the assessment was to elicit answers put to students following the experiments, and that did not need to be done orally. The High Court also made the point that the competence standards exception only applies to the duty to make reasonable adjustments, so competence standards are not "beyond the reach of the law". They can still be challenged under other provisions if they are shown to be indirectly discriminatory: an education institution will be required to show they are a proportionate means of achieving a legitimate aim in the usual way.
The High Court judgment also highlighted the difference between a core competency, and the methods of assessing that competency. Methods of assessment are subject to the duty to make reasonable adjustments.
What can universities take from the High Court findings?
There a number of key issues arising from this case that Universities will want to consider:-
- Are staff appropriately trained on disability and disability discrimination?
- Are staff aware that the duty to make reasonable adjustments is an anticipatory duty?
- Are staff aware that expert medical or other relevant advice will not always be required before adjustments should be considered?
- Do current policies or procedures need to be reviewed, for example regarding when examination arrangements can be amended?
- Are staff aware of the difference between competence standards and the method of assessment or those standards?
With respect to the matter of whether universities are bound by a common law duty of care to students, the judgment of the County Court stands, having not undergone review by the High Court. The County Court was not satisfied that the university owed such a duty of care. However, families including the Abrahart family are campaigning for a statutory duty of care for students in higher education to be introduced, and the position on the common law duty is one that may be reconsidered by the courts in future.
