Disabled law student did not have right to take exams at home

A disabled law student did not have the right to take his exams at home, the Employment Appeal Tribunal has ruled.

The College of Law allowed the student, who suffers from multiple sclerosis, 60 per cent more time to complete the exam, breaks of up to 15 minutes every hour, the use of an amanuensis and his own room to take the exam.

Because the student lived in Brighton, the college also paid for him to stay at the YMCA in Guildford for two weeks during a specially extended examination period.

Giving judgment in Burke v the College of Law and the SRA (UKEAT/0301/10/SM), Judge Birtles said that despite the adjustments offered to him, Burke said he should have been offered even more time to take the exams and the chance to take them in his own home in Brighton.

By refusing to do this, Burke claimed that the College of Law and the SRA had failed to make 'reasonable adjustments' under the Disability Discrimination Act 1995.

An employment tribunal rejected Burke's claims of discrimination. The tribunal heard that Burke obtained an honours degree in history in 1995 and started a teaching career before being diagnosed with MS in 2001.

As a result, he decided to embark on a career in law, took a CPE at Sussex University and started the LPC in Guildford in 2006.

The employment tribunal heard that, despite the adjustments made by the College of Law, Burke failed the business accounts exam three times, meaning he was not entitled to any further resits.

The employment tribunal concluded that allowing the law student to take the exams at home was not, in his case, a 'reasonable adjustment', though there might be cases where such an adjustment was necessary. The tribunal described Burke's demands as 'clearly unreasonable' and said the College of Law had met his concerns with 'extensive adjustments'.

Judge Birtles said counsel for Burke claimed there was no document before the employment tribunal which stated that 'time is a factor in marking the exams'.

The judge said it was 'crystal clear' from the evidence that examinations are 'time-limited'.

He said the fact that the college agreed to make adjustments to the competency standards to help Burke did not 'automatically mean that it was required to do so by virtue of the DDA'.

Judge Birtles said there was a 'clear distinction to be drawn between giving a candidate some extra time, such that the nature of the examination (and competency standard) is maintained, and giving such an amount of extra time so that the examination is no longer testing what it is intended to test (in this case the ability to work under time pressure).'

Judge Birtles rejected a further submission based on complaints Burke made about the quality of his accommodation at the YMCA after the exams had ended.

The judge said Burke made no complaints during the course of the exams and there was no suggestion during the employment tribunal hearing that if the respondent had found better accommodation that would have been a reasonable adjustment.

'Throughout the hearing the appellant was arguing that the only reasonable adjustment would to permit him to take the examinations at home.'

Judge Birtles concluded that 'put simply' the issue over accommodation was not 'flagged up' by the appellant before the employment tribunal. He dismissed Burke's appeal.