Inclusion Now 63

Legal Question

This Legal Question was posed by ALLFIE’s Simone Aspis. It was answered by Lisa Morris, Trainee Solicitor, Education, supervised by Lucy Atherton at Simpson Millar Solicitors.

Listen to ‘Legal Question’

“I am a Disabled student and have Autism Spectrum Disorder (ASD). I’m currently studying a Bachelors’ Degree in Business Studies. For the Business Development module, myself and fellow students must form teams to develop a feasibility study for a chosen business idea. I find working in groups very distressful and unbearable, so have asked my university for a disability related reasonable adjustment – to be allowed to submit my feasibility study as a sole trader as this is the type of business I want to run. What is my legal position?”

The duty to make reasonable adjustments requires education providers, such as the University at which you are undertaking the course, to take positive steps to ensure that Disabled students can fully participate in the education and enjoy the other benefits, facilities and services provided for the students.

Section 20 (3) Equalities Act 2010 sets out a requirement, “where a provision, criterion or practice of the University puts a Disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not Disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”. In this situation, the argument would be that the provision to work in a team to partake in the feasibility study would place a student with a diagnosis of autism, who feels distress at working in groups as a result of this, at a substantial disadvantage in comparison to students who do not have this impairment. This would appear to be a clear disadvantage caused to the Disabled student.

Where the duty to make reasonable adjustments arises, the University cannot justify a failure to make a reasonable adjustment. However, the law does place specific restrictions on the duty in relation to further and higher education institutions, such as the University, and maintained schools providing further education. One such restriction arises where the matter involves 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. This would include an assessment to examine whether you have obtained the relevant skills from your course, such as an examination or a case study. The University will not be required to make any reasonable adjustments to the application of a competence standard.

Whether the competence standard would apply in this scenario depends on the skills which the study is designed to assess. The requirement that the study is completed in a group would not be a competence standard unless the competence being tested includes the ability to work in a team. You would also need to consider whether the specifications of the study exclude sole-trader business, as it could be a competence standard if the purpose is to assess understanding of other types of businesses.

If the skills being assessed amount to a competence standard and you must complete the study as part of a group, the University will still be subject to the duty to make reasonable adjustments to the process by which the competence is assessed. Therefore, it would need to consider whether or not a reasonable adjustment could be made to some aspect of the study to accommodate the distress experienced by working in a group, without removing the requirement to work as a team. For example, this may include allowing contributions to take place remotely rather than in-person, if this would reduce distress caused.

Simpson Millar Solicitors.