EHRC Guidance on Reasonable Adjustments in Higher Education

In July 2024, the Equality and Human Rights Commission (“EHRC”) published guidance for the higher education sector in relation to the outcome of University of Bristol v Abrahart. While much of the commentary around the case focused on the question of a duty of care, ultimately the main themes from the resulting judgment related to knowledge of disability and competence standards.

As with all disability and reasonable adjustments cases, Abrahart is fact-specific and the overall context is key to understanding why certain findings were made. This is also one of the reasons that reasonable adjustments and disability discrimination can be a particularly difficult area for universities to get right; there really is no way to implement a one-size-fits-all approach and each case must be assessed on all the facts. Abrahart is no different and when considering this case and the findings relating to what the university did or didn’t do, or should or shouldn’t have done, context is of vital importance.

In particular, it is important to keep in mind that the Court found that university staff had been aware that Natasha had issues with anxiety, especially in the context of oral assessments, and the university had considered implementing reasonable adjustments, but had not taken any steps to do so. These facts are key to understanding why in the first instance the County Court had held that the university had discriminated against her under the disability provisions of the Equality Act 2010. You can read about the High Court judgment here.

Given the fact-specificity, it is always difficult to draw up general guidance that is universally applicable and the EHRC’s guidance reflects this difficulty.

When is lack of knowledge a defence to the failure to make reasonable adjustments?

For example, one of the court’s conclusions is summarised by the EHRC as:

“It is also no longer possible to argue that an education provider did not know, or could not reasonably be expected to have known, about a disability, as a defence to a claim of failure to make reasonable adjustments. This is because the duty to make reasonable adjustments is an anticipatory duty, meaning providers should have thought about what adjustments they ought to make to matters affecting all students, prior to becoming aware of a specific student’s disability.”

However, while the duty to make reasonable adjustments is anticipatory, the anticipatory element of the duty has limitations. It is impossible for any service provider (regardless of sector) to be able to anticipate the reasonable adjustment needs of all service users. For example, while universities have a duty to consider what adjustments could be put in place for students with mental health conditions as a group, exceptional requirements can exist (particularly in relation to non-obvious impairments) where a university could not have reasonably been expected to put in place reasonable adjustments in advance. In such circumstances, where specific reasonable adjustments were impossible to anticipate, universities may very well rely on their lack of knowledge of the need for those as a defence to an allegation that they failed to make those reasonable adjustments.

However, in Abrahart the court found this wasn’t the case: the university was aware of her anxiety and had even considered implementing reasonable adjustments. Therefore, the university was not able in this case to rely on the defence that they had no knowledge of disability. Context in these types of cases is everything.

When does a university have knowledge of a disability?

Previously under the Discrimination Disability Act 1995, knowledge related specifically to what the “responsible body” (i.e. the institution’s governing body) knew or reasonably could have known. This changed under the Equality Act 2010 where reference to the “responsible body” was excluded. This means as soon as an individual member of staff becomes aware of a student’s disability or the need for reasonable adjustments, the university will be considered to have constructive knowledge of the disability and the duty to make reasonable adjustments will be engaged. The guidance emphasises that a formal diagnosis is not required, and flowing from this is an implication that evidential requirements should not be burdensome.

It comes as no surprise that much of the new guidance focusses on staff training. All staff that interact with students should be trained not only on the university’s duties under equality law, but how to recognise potential disabilities as well as how to identify mental health crises in students.

This expectation for compliance could be a massive undertaking. The number of student-facing staff at any university is incredibly large and many institutions currently rely heavily on their disability services teams to deal with reasonable adjustments. The new guidance makes it clear that this isn’t sufficient, and that student-facing staff will not only need to understand the university’s duties, but also be empowered to implement reasonable adjustments locally, even before a formal diagnosis is received or engagement with disability services has happened, in urgent or serious circumstances.

The EHRC’s expectation that all student-facing staff will be trained to identify mental health crises in students and action support for them may also pose issues for universities. Again, given the numbers of student-facing staff, this would be a massive undertaking. But it also raises questions of boundaries and expectations. In some cases, such as Abrahart, it will be fairly obvious to staff that something is wrong and which steps could be taken to support a struggling student. However, we have been in involved in advising on cases involving student suicide where, tragically, it was not obvious, even to a student’s own support system or healthcare team, that they were in crisis. Student-facing staff are unlikely to be trained to the same degree as counsellors or health professionals and expecting them to be able to identify a mental health crisis is potentially a very heavy burden that could lead to immense feelings of guilt for missing a student in crisis.

Is it truly a competence standard?

One of the university’s arguments in Abrahart was that oral assessments were a competence standard. Competence standards are excluded from the duty to make reasonable adjustments. When competence standards were first excluded from the duty, back when the Disability Discrimination Act 1995 first came into force, universities were urged to review assessment processes and criteria to ensure that they truly were competence standards. The outcome of Abrahart raises some questions regarding whether these reviews were fully carried out and whether there is sufficient understanding amongst those developing courses of what amounts to a competence standard.

Where competence standards are set by professional and statutory regulatory bodies, it should be confirmed with them whether the method of assessment is a key part of the competence standard. Staff who deal with complaints and academic appeals in particular should understand what a competence standard is and if necessary challenge whether methods of assessment are truly competence standards where applicable. The new guidance urges universities to consider how methods of assessment could be changed to accommodate disabilities whilst testing the required competencies.

The EHRC’s view following Abrahart is that methods of assessment will rarely, if ever, be a competence standard and therefore most assessments will fall under the duty to make reasonable adjustments. Of course, some disciplines may be more likely than others to have methods of assessment amount to competence standards, but universities should consider this carefully when determining whether to make reasonable adjustments.