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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> The University Of Bristol v Abrahart [2024] EWHC 299 (KB) (14 February 2024) URL: http://www.bailii.org/ew/cases/EWHC/KB/2024/299.html Cite as: [2024] EWHC 299 (KB) |
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Neutral Citation Number: [2024] EWHC 299 (KB)
Case No: KA-2022-BRS-000012
IN THE HIGH COURT OF JUSTICE
KING'S BENCH APPEALS
BRISTOL DISTRICT REGISTRY
ON APPEAL FROM THE BRISTOL COUNTY COURT
(His Honour Judge Ralton and Mrs Christine Price)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14/02/2024
Before :
MR JUSTICE LINDEN
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Between :
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THE UNIVERSITY OF BRISTOL |
Appellant/Defendant |
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-and-
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DR ROBERT ABRAHART (Administrator of the estate of Natasha Abrahart, deceased) |
Claimant/Respondent |
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-and-
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EQUALITY AND HUMAN RIGHTS COMMISSION |
Intervener |
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Aileen McColgan KC and Paul Stagg (instructed by Kennedys Law LLP) for the Appellant
Jamie Burton KC and Sarah Steinhardt (instructed by Deighton Pierce Glynn) for the Respondent
Catherine Casserley (instructed by The Equality and Human Rights Commission's Litigation and Advisory Team) for the Intervener (written submissions only)
Hearing dates: 11-13 December 2023
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Judgment Approved
This judgment was handed down remotely at 10.45am on 14 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
CONTENTS
OUTLINE OF THE APPEAL/CROSS APPEAL
Ms Abrahart's first year at the University
The first term of Ms Abrahart's second year
The second term of Ms Abrahart's second year
OVERVIEW OF THE COURT'S JUDGMENT IN RELATION TO DISABILITY DISCRIMINATION
THE UNIVERSITY'S APPEAL IN RELATION TO THE FINDINGS OF DISABILITY DISCRIMINATION
The finding of breach of section 15 of the 2010 Act
The finding of breach of the duty to make reasonable adjustments
THE JURISDICTION OF THE HIGH COURT IN AN APPEAL FROM THE COUNTY COURT
The duty to make reasonable adjustments: institutions of further or higher education
No duty to make adjustments to competence standards
Discussion and conclusions on Ground 4: the competence standard point
Actual or constructive knowledge of the claimant's disability: section 15(2)
Section 15(1): relevant principles
Discussion and conclusions on Grounds 1 and 2: actual or constructive knowledge
Discussion and conclusions on Ground 3
Discussion and conclusions on Ground 6
OVERALL CONCLUSION ON THE APPEAL
THE CROSS APPEAL AND THE ISSUES IN RELATION TO NEGLIGENCE
MR JUSTICE LINDEN:
OUTLINE OF THE APPEAL/CROSS APPEAL
Ms Abrahart's first year at the University
The first term of Ms Abrahart's second year
33. Ms Perks then forwarded this email to Dr Barnes and Professor Phillipps with the message:
"Dr Barnes noted in his summary:
The second term of Ms Abrahart's second year
52. I was referred to Dr Barnes' entry in the Student Summary which said:
55. Mr Burton highlighted that this email also said, before the passages cited by the Judge:
57. At [64] the Judge found that:
74. Mr Burton notes that the Student Wellbeing Service did not make contact with Ms Abrahart.
78. That evening, the Judge found:
85. The Judge found that, on 27th April 2018:
"there had been no request to do so either by Ms Abrahart or under a Disability Support Summary."
OVERVIEW OF THE COURT'S JUDGMENT IN RELATION TO DISABILITY DISCRIMINATION
"the primary stressor and cause of Natasha's depressive illness was oral assessment.".
"The Claimant must prove that the University had actual or constructive notice of Natasha's disability. The simple point is that from October 2017 it manifested itself - it was there to be seen - in contrast, perhaps, to disabilities which can be hidden or only be discerned with expert technical skill. To put this another way, following Gallop v Newport City Council [2013] EWCA Civ 1583, the University's staff could see for themselves that Natasha had a mental impairment which had a substantial and long-term adverse effect on her ability to carry out an otherwise normal task within her course from October 2017. However, I do not think that there was sufficient manifestation of any disability in year 1 to put the University on notice of anything."
"(1) With respect to the laboratory interviews:
(a) Removing the need for oral assessment altogether and or;
(b) Providing written questions in advance.
(2) With respect to the conference:
(a) removing the need for oral assessment;
(b) Providing written questions in advance;
(c) Assessing Natasha in the absence of her peers;
105. At [122], he said the following:
"122. For the avoidance of doubt it was not necessary for Natasha to identify reasonable adjustments at the time; if there was a duty to make reasonable adjustments in the first place then it was for the University to apply its mind to the adjustments that could be made; see Cosgrove v Caesar & Howie[2001] IRLR653 Lindsay P at 654-7."
"123. Insofar as the University argues that it made any adjustments (and as covered earlier in this judgment I find that the University did not get that far) we know that Natasha's substantial disadvantage (the same having been conceded by Mr Stagg) compared to a non-disabled person remained so the duty to make reasonable adjustments could not be said to have been complied with per Archibald v Fife Council [2004] ICR 954."
112. At [131] the Judge then said:
132. Therefore I reject [the University's] 'competency standard' argument."
113. At [133]-[135] he then said:
"133. It is not the disabled student who is under a duty to identify reasonable adjustments and it is common ground (I think) between counsel that the duty is anticipatory (and see the Technical Guidance paragraph 7.17 ff). There is no evidence that Natasha refused to engage with any reasonable adjustments because whilst a few ideas were floated none were implemented. The greatest criticism that could be made of Natasha is that she did not engage with Disability Services but that non-engagement resulted from the disability. Unfortunately in the absence of a Disability Support Summary the University seemed to simply stall in its consideration of reasonable adjustments. In those circumstances it cannot rely on lack of knowledge on its part to make reasonable adjustments (applying Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664).
135. I conclude that this claim is made out."
117. There is then a final sub-heading –"Justification"- where the Judge said this:
But, inevitably, that argument means that paragraph 9.38 must be seen as another PCP. In any event:
141. I conclude that the University has not justified the lack of adjustments." (emphasis added)
THE UNIVERSITY'S APPEAL IN RELATION TO THE FINDINGS OF DISABILITY DISCRIMINATION
The finding of breach of section 15 of the 2010 Act
121. Under Ground 3 Ms McColgan argued that the Judge failed to consider the question of justification at all in relation to the section 15 claim (Ground 3.1). If he did consider this question, he had failed to ask whether the oral mode of examination pursued a legitimate aim and, if so, whether the means used were proportionate (Ground 3.1). Nor did he consider the question in light of the state of the University's knowledge of Ms Abrahart's disability at the material times, and the fact that the extenuating circumstances process was open to her (Ground 3.3). Contrary to the submission of the EHRC, knowledge was a relevant consideration under section 15(1)(b) - justification - as well as section 15(2) and York City Council v Grosset [2018] EWCA Civ 1105, [2018] ICR 42 did not establish the contrary as the EHRC submitted.
The finding of breach of the duty to make reasonable adjustments
ii) In assessing the question of reasonableness, the Court was required to take into account the University's actual or constructive knowledge of Ms Abrahart's disability, its effects on her ability to engage with the assessment process, what steps might be taken and what the effects of taking them was likely to be. Only with this information would the University be in a position to assess what was necessary and reasonable. In this connection Ms McColgan relied on Laws LJ in Newham Sixth Form College v Sanders [2014] EWCA Civ 734 and its application in Aecom Ltd v Mallon [2023] EAT 104. She also relied on [7.23] and [7.25] of the Technical Guidance (referred to below at [161]). It was precisely for this reason that there was a process which had to be undertaken given the importance of academic integrity and fairness to all students.
127. Importantly, Ms McColgan accepted that:
128. Ms McColgan also accepted the Judge's statement at [122], applying Cosgrove v Ceasar & Howie [2001] IRLR 653 EAT at [7] (see [105], above) that there was no burden on Ms Abrahart to identify reasonable adjustments at the time of the relevant events. And she said that no criticism was made of Ms Abrahart's failure to engage with Student Disability Services. But she submitted that the Judge was wrong to assert (at [134]) that the University "seemed to simply stall in its consideration of reasonable adjustments" in the absence of a Disability Support Summary. On the contrary, Ms McColgan argued, the University continued to encourage her to fill in an extenuating circumstances form and to provide medical evidence, as well as to offer her support and to seek to avoid a situation in which she would fail her second year.
Ground 7: confidentiality
131. This Ground contended that:
132. Under the heading "Confidentiality" the Judge had said:
34. This is consistent with paragraph 4 of Schedule 2 to the Data Protection Act 1998..."
THE JURISDICTION OF THE HIGH COURT IN AN APPEAL FROM THE COUNTY COURT
136. As is well known, CPR rules 52.21 (3) and (4) provide:
"(3) The appeal court will allow an appeal where the decision of the lower court was—
(4) The appeal court may draw any inference of fact which it considers justified on the evidence."
137. Mr Burton referred to the well-known caselaw which emphasises that an appellate court will only interfere with a finding of primary fact by the court of first instance where it concludes that the finding is not supported by the evidence or where the decision is one which no reasonable judge could have reached: see e.g. Haringey LBC v Ahmed & Ahmed [2017] EWCA Civ 1861 at [29]-[31].
138. He also reminded me of the helpful summary, in Prescott v Sprintroom Limited [2019] EWCA Civ 932; [2019] BCC 1031 at [76]-[78(vi)], of the position where an appellate court is asked to interfere with an evaluative judgement such as the question whether, on the evidence, a decision or a step was or was not reasonable. I do not need to set this out in full but, the following points are particularly important in the present case:
iii) The reasons for the principle that the appellate court should not interfere with the findings of fact of the trial judge - whether primary facts or evaluative findings - unless compelled to do so include (per Lewison LJ in Fage UK Ltd. & anor. v Chobani UK Ltd [2014] EWCA Civ 5,[114]), the expertise of the trial judge, the efficient use of resources on the basis that the trial "is not a dress rehearsal. It is the first and last night of the show" and that:
139. Mr Burton also made the point that it may be important to have regard to how the case was argued at first instance: see King v Telegraph Group Limited [2004] EWCA Civ 613, [2005] 1 WLR 2282. And he referred me to English v Emery Reinbold and Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 and Harris v CDMR Purfleet Ltd [2009] EWCA Civ 1645 for the well-known principles applicable to appeals based on the contention that the court below gave inadequate reasons for its decision. At [21] of her judgment in Harris, Lady Justice Smith said:
The legal framework
The application of the 2010 Act to the provision of education
"(2) The responsible body of such an institution must not discriminate against a student—
(a) in the way it provides education for the student;
(f) by subjecting the student to any other detriment."
143. Section 91(9) provides that:
"(9) A duty to make reasonable adjustments applies to the responsible body of such an institution."
Having a disability
"(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
147. Where it appears in the 2010 Act, "substantial" means more that minor or trivial: section 212. A "long term adverse effect" is one which has lasted or "is likely to last for at least 12 months" (paragraph 2(1)(b) of Schedule 1 to the 2010 Act) or likely to last for the rest of the life of the person affected. "Likely" for these purposes means "could well happen": Boyle v SCA Packaging Ltd [2009] UKHL 37, [2009] ICR 1056.
The duty to make reasonable adjustments: general provisions and principles
148. As Baroness Hale said in Archibald v Fife Council [2004] UKHL 32, [2004] All ER 303 at [47], in contrast to other areas of the law against discrimination, the disability discrimination legislation:
149. Under section 20 of the 2010 Act:
(2) The duty comprises the following three requirements....."
153. Under section 20(3), a sequence of questions requires to be answered:
i) What is the provision, criterion or practice ("PCP") complained of?
iii) What are the steps which it is reasonable for A to have to take to avoid that disadvantage?
154. These questions are focussed on the adverse effect of the PCP on the individual as compared with others who are not disabled, and on the steps which ought reasonably to have been taken to address that effect. This involves consideration of the extent to which the steps would avoid the disadvantage, but it does not mean that a defendant need not take any steps if they would not avoid the disadvantage altogether: see Noor v Foreign and Commonwealth Office [2011] ICR 695 at [33]. In principle, it could be reasonable to take steps which would merely reduce the disadvantage, or where there was "at least a real prospect" that the adjustment will make a difference: First Group plc v Paulley [2017] UKSC 4, [2017] 1 WLR 423 at [60].
The duty to make reasonable adjustments: institutions of further or higher education
"(4) In relation to each requirement, the relevant matters are—
(a) deciding who is offered admission as a student;
(c) access to a benefit, facility or service;
(d) deciding on whom a qualification is conferred;
(e) a qualification that A confers."
158. For these reasons, in this context the duty to make reasonable adjustments has been described as an "anticipatory" duty, i.e. the expectation on the educational institution is that its responsible body will proactively consider what adjustments might be reasonable whether or not an issue has (yet) arisen in relation to a particular individual and a relevant matter or adjustments have been requested. In Keith Roads v Central Trains Ltd [2004] EWCA Civ 1541 at [11] Sedley LJ said this about the analogous position of service providers under what was then section 21 of the Disability Discrimination Act 1995:
159. Consistently with this, the Technical Guidance offers the following advice at [7.20]:
164. Thirdly, by the time of the hearing of the claim the claimant must have set out their case as to the adjustments which they say ought to have made. There must also be at least some evidence of an apparently reasonable adjustment from which the court could conclude that the duty was breached. If there is, however, applying the burden of proof provisions under section 136 of the 2010 Act, the burden shifts to the defendant to prove that the duty was not breached i.e. that any reasonable steps were taken and/or that the steps proposed by the claimant were not reasonable ones for it to take: see, e.g. Project Management Institute v Latif [2007] IRLR 579 EAT at [52]-[54], approved in Finnegan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191, [2014] 1 WLR 445 at [38].
167. I did not understand Mr Burton to dispute the proposition that what the University knew or ought to have known about Ms Abrahart was relevant to the reasonableness question. But I was not absolutely clear, from [58] of Ms Casserley's submissions, whether it was disputed by the EHRC. For the avoidance of doubt, it is well established that the test of reasonableness is an objective one for the court (Allen v Royal Bank of Scotland [2009] EWCA Civ 1213 at [40]). Possibly contrary to [58], the fact that the knowledge of the defendant is relevant does not mean that the test becomes a subjective one. The objective question for the court, where a point is taken on knowledge, would be: given what the defendant knew or ought to have known, was the proposed step one which it was reasonable for it to take? I agree, however, that the question whether the defendant thought that it was a reasonable step would not be a relevant consideration precisely because the question is an objective one for the court, and not the defendant, to determine: Smith v Churchills Stairlifts plc [2005] EWCA Civ 1220, [2006] ICR 524 at [45].
168. I also add this in relation to Ms McColgan's reliance on Laws LJ in Newham Sixth Form College v Sanders [2014] EWCA Civ 734 at [14] where he said:
169. This statement was made in the context of section 4A of the Disability Discrimination Act 1995 which included, as a pre-condition for the duty to make reasonable adjustments arising, a requirement that the employer had actual or constructive knowledge of the facts constituting the employee's disability (see the discussion of Gallop v Newport City Council [2013] EWCA Civ 1583, [2014] IRLR 211 below). Even in that context it is clear that, whilst accepting that the employer's knowledge was relevant to the question of reasonableness, Laws LJ was not suggesting that the statutory test was whether an employer was in a position to make an objective assessment of the reasonableness of proposed adjustments. The statutory test, to which I accept this question may be relevant, is whether the step was a reasonable one for the employer to take to avoid the disadvantage. The decision of Aecom Limited v Mallon [2023] EAT 104, on which Ms McColgan also relied, also concerned the Schedule 8 to the 2010 Act (employment), where the actual or constructive knowledge of the disability is expressly required.
No duty to make adjustments to competence standards
172. [4] of Schedule 13 provides that:
"(2) A provision, criterion or practice does not include the application of a competence standard.
176. [7.34] of the Technical Guidance observes:
179. This is consistent with Burke v College of Law UKEAT/0301/10/SM, referred to by the Judge, where the exam was held to be measuring levels of performance under time pressure (permission was granted to challenge this finding but ultimately the Court of Appeal did not need to determine this issue: [2012] EWCA Civ 37 at [39]). A requirement to complete an exam within a specified period of time would otherwise be likely to be a method of assessing the competence of the examinee in the subject (e.g. their knowledge of the subject) and would be subject to the duty to make reasonable adjustments. Again, the nature of the requirement in a given case is an evidential matter.
182. Ms Casserley also made the following submission on behalf of the EHRC:
i) what competence or ability is being measured?
iii) what aspect of the process are methods of assessment of whether those standards have been met?
Discussion and conclusions on Ground 4: the competence standard point
The arguments of the parties in the County Court
The decision of the County Court
194. He went on to note that the ILO was described as follows:
197. In addition to this, at [103], in his observations on the witnesses, the Judge recorded:
Outline of the arguments before the County Court
Analysis of the Judgment
The need to look at the Judgment as a whole
What the Judge saw as the central issue
Analysis of the Judge's conclusions
222. Turning to the Judge's conclusions:
vi) The Judge's reference to Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 EAT appears to be to passages at [69] and [72] of the judgment of the Employment Appeal Tribunal which were cited to him by Mr Burton. These said that consultation itself is not an adjustment, but if an employer does not consult with an employee about adjustments it cannot then rely on a lack of knowledge which would have resulted from consultation as a shield to defend a complaint of failure to make reasonable adjustments. Again, this reflected the Judge's view that the University should have spoken to Ms Abrahart about reasonable adjustments earlier and been more proactive.
225. I therefore reject Ground 5.
GROUNDS 1-3 - THE CHALLENGE TO THE COURT'S FINDING THAT THE UNIVERSITY BREACHED SECTION 15 OF THE EQUALITY ACT 2010: DISCRIMINATION ARISING FROM DISABILITY
226. Section 15 of the 2010 Act provides:
"15 Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Actual or constructive knowledge of the claimant's disability: section 15(2)
227. It is apparent from the terms of section 15(2) that the burden is on the alleged discriminator to prove lack of knowledge, such that section 15(1) is not engaged. In Gallop v Newport City Council [2013] EWCA Civ 1583, [2014] IRLR 211 at [36] the Court of Appeal held that the knowledge referred to is actual or constructive knowledge that the employee had an impairment with the characteristics described in the statutory definition of disability. Rimer LJ said:
228. Although this statement was made in an employment case and in the context of the duty to make reasonable adjustments, the formulation of the statutory test was materially the same as under section 15(2) of the 2010 Act. The Gallop interpretation has therefore been applied in the context of this section in, for example, A Ltd v Z [2020] ICR 199, on which Ms McColgan relied.
231. Singh LJ agreed with this summary in Stephen Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694, [2022] IRLR 159 at [98], another case under section 15. Ms McColgan also pointed out that Singh LJ accepted that the employment tribunal in that case should have addressed questions which included:
Section 15(1): relevant principles
232. As Simler J (as she then was) pointed out in Pnaiser v NHS England [2016] IRLR 170 EAT at [31], in summary, where section 15(1) applies it raises a series of questions:
i) What is the unfavourable treatment by A complained of?
ii) What was A's subjective reason for that treatment?
iii) Objectively, did that reason arise in consequence of B's disability?
iv) Was the treatment of B a proportionate means of achieving a legitimate aim?
233. In relation to the fourth of these questions, the shorthand "justified" is often used but the test is more specific than this. In R (Elias) v Secretary of State for Defence [2006] EWCA Civ, [2006] 1 WLR 3213 at [165], in the context of the corresponding test in the context of indirect discrimination Mummery LJ said that there are three questions:
234. In Aster-Livingstone v Aster Communities Limited [2015] UKSC 15, [2015] AC 1399, a case under section 15 of the 2010 Act, at [28] this formulation was approved by the Supreme Court which added a fourth question, applying Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2014] AC 700 at [74]), namely:
235. In the context of section 15 the detriment which requires to be weighed at this fourth stage is the detriment to the individual claimant by reason of the unfavourable treatment, rather than detriment to "the disadvantaged group" which is the subject of a complaint of indirect discrimination under section 19: see e.g. Stott v Ralli Ltd [2022] IRLR 148 at [81].
236. Consideration of whether a measure or treatment is proportionate will necessarily take into account whether less unfavourable or detrimental treatment might reasonably have achieved the defendant's aims: as Lord Reed put it in Bank Mellat (No 2) (supra) at [74], "(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective". In this connection, I note that section 28B(8) of the Disability Discrimination Act 1995 expressly provided, in the context of education, that disability related less favourable treatment could not be justified if there had been a breach of the duty to make reasonable adjustments, unless the treatment would have been justified even if the duty had been complied with. Although this provision is not replicated under section 15 of the 2010 Act, given Bank Mellat question (3), it will be a rare case in which unfavourable treatment of a claimant falling within section 15(1)(a) would be proportionate for the purposes of section 15(1)(b) in circumstances where the need for it would have been avoided had the duty to make reasonable adjustments been complied with: compare City of York Council v Grosset [2018] EWCA Civ 1105, [2018] ICR 1492 at [57] and see [6.19] and [6.20] of the Technical Guidance.
Discussion and conclusions on Grounds 1 and 2: actual or constructive knowledge
Was section 15(2) satisfied at any point?
Discussion and conclusions on Ground 3
253. Section 19, provides, so far as material, as follows:
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
Discussion and conclusions on Ground 6
259. Ground 6 therefore fails.
265. I therefore refuse permission in relation to Ground 7.
OVERALL CONCLUSION ON THE APPEAL
266. The Appeal is therefore dismissed.
THE CROSS APPEAL AND THE ISSUES IN RELATION TO NEGLIGENCE
269. Having come to the conclusion which I have reached on the disability discrimination claims, however, I do not propose to express a final view, one way or the other, in relation to the Judge's findings about the claim in negligence or the parties' arguments in relation to this claim. It is not necessary for me to do so given that the Order of the County Court stands as a result of my conclusions under the Equality Act 2010. Damages for discrimination are awarded on a tortious basis: section 119(2)(a).
270. In my view, nor would it be wise for me to express a final view for various reasons: