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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Project Management Institute v. Latif [2007] UKEAT 0028_07_1005 (10 May 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0028_07_1005.html Cite as: [2007] UKEAT 0028_07_1005, [2007] IRLR 579, [2007] UKEAT 28_7_1005 |
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At the Tribunal | |
On 30 April 2007 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR M CLANCY
MR J C SHRIGLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
LORD JUSTICE BUXTON
For the Appellant | MS JOANNE CLEMENT (of Counsel) Instructed by: Messrs White & Case Solicitors 5 Old Broad Street LONDON EC2N 1DW |
For the Respondent | MR PAUL EPSTEIN (One of Her Majesty's Counsel) Instructed by: Disability Rights' Commission Legal Services 2nd Floor Arndale House The Arndale Centre MANCHESTER M4 3AQ |
SUMMARY
The Appellant is a qualifying body, subject to s. 14 of the Disability Discrimination Act. The Tribunal found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an examination. In so doing the Tribunal misdirected itself on certain aspects of law. However, the EAT held that these directions were not material to their conclusion. Their findings were such that it was plain that they would have found a breach of the duty even had they directed themselves properly.
Observations on the burden of proof in reasonable adjustment cases.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The relevant legislation
"It is unlawful for a qualifications body to discriminate against a disabled person –
(a) in the arrangements which it makes for the purpose of determining upon whom to confer a professional or trade qualification…
"Where –
(a) a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body; or
… places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the qualifications body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."
"(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to –
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take that step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking."
(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision or other support."
"Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act."
The Tribunal's decision
"……the difficulties and dangers are largely, if not completely, overcome by the suggested alternative, that of taking the exam on a stand alone computer at a Test Centre, on to which computer the exam questions had been entered in Word format, and with JAWS software installed. The costs involved in that process can properly in our view be described as modest, involving the transportation (perhaps) of a computer to the Test Centre, the time involved in installing Word and the exam onto the machine, and that involved in an appropriate individual marking the claimant's answers (as happens when a paper-based exam is taken). JAWS could be installed and uninstalled using the claimant's token, as Mr Christopherson did for the purposes of his report. Since it was confirmed that Thomson Prometric have an existing licence to use Word, we do not believe any additional license fee arises. Overall, it is difficult to see how the costs involved could amount to more than a few hundred pounds; to be compared with the actual costs incurred by the respondent in the claimant sitting the exam of US$495."
"Of course, it should be borne in mind that the "stand alone" computer suggestion was never raised in terms by the claimant at the relevant time. It may be objected that the respondent should not be liable for, or vulnerable to, clever yet hypothetical adjustments suggested by her Counsel. We do not consider that would be fair criticism. First, as noted, the onus is not on the claimant to make suggested adjustments at the relevant time; rather on the respondent to carry out a proper assessment. Secondly, we think that, had the respondent listened carefully to what the claimant was requesting and conducted a proper assessment, such a scheme, or something similar might reasonably be expected to have emerged, perhaps with a Reader to help with diagrams and provide back-up in the event of technical problems as the claimant originally suggested. It is worth bearing in mind that, as early as 25 January 2005, Ms Reekmans on behalf of the respondent at least flagged up the possibility of the claimant's software being installed on a Test Centre computer and that the claimant throughout indicated her strong preference for taking the exam by means of a computer that she operated, rather than via a Reader/Recorder. Had the respondent been willing to engage with the claimant's expressed needs, rather than "holding the line" on what was/was not allowed, we consider it likely that this scheme, or something similar, would have resulted."
The grounds of appeal
Misdirection as to the duty to carry out an assessment.
Failure to take account of relevant factors.
Burden of Proof
" (a) Has the claimant proved facts from which it could be inferred that any provision, criterion or practice has placed her at a substantial disadvantage? If so,
b) Has the respondent on cogent evidence proved that
(i) there was no such provision, criterion or practice, or
(ii) the claimant was not at a substantial disadvantage; and
(iii) that there were no further or other steps that it could reasonably have taken in order to reduce or eliminate any such disadvantage?"
(Mr Epstein accepts that the word 'and' underlined in that paragraph must be an error: even on his approach, it ought to be an 'or'. This is because the duty to make an adjustment does not arise if the other two conditions are not satisfied.)
"To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty had arisen, and that it had been breached. If the employee does this the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard."
This certainly implies that something more than the two conditions of an arrangement resulting in a substantial disadvantage is required before the burden shifts.
Is the burden relevant here?
Disposal