United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL NICHOLLS (of Counsel) Bar Pro Bono Unit
For the First Respondent For the Second Respondent	MS LAURA PRINCE (of Counsel) Instructed by: College of Law Legal Services Braboeuf Manor Portsmouth Road Guildford GU3 1HA MR TIM SHEPPARD (of Counsel) Instructed by: Messrs Mills & Reeve LLP Solicitors 78-84 Colmore Row Birmingham B3 2AB


 


SUMMARY

DISABILITY DISCRIMINATION – Reasonable adjustments

The Claimant was disabled and requested additional adjustments relating to his taking the Legal Practice Course examinations in order to qualify as a solicitor. The particular adjustments were (a) extra time / beyond the 60% already given and (b) taking the exams at home. After the examinations he complained about the quality of the YMCA accommodation he had been provided with in Guildford to remove the stress and fatigue of travelling from his home in Brighton.

The EAT upheld the Employment Tribunal finding that the time requirement was a competency standard under s14A(5) of the SRA and as such there was no requirement to make a reasonable adjustment. In any event adequate reasonable adjustments had already been made. A submission as to the site requirement based on Meek was rejected as it was not argued before the ET.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal against the judgment of an Employment Tribunal sitting at London South in April and August 2009. The unanimous judgment of the Tribunal was that the Claimant's claim for disability discrimination was dismissed. The claim was brought under the Disability Discrimination Act 1995 in relation to Mr Burke's progress towards becoming a Solicitor. The issues were whether either the first or the second Respondent had failed to make reasonable adjustments in their capacity as qualification bodies, pursuant to s.14B of the 1995 Act.
2. The Appellant was represented by Mr Paul Nicholls of counsel. The First Respondent was represented by Ms Laura Prince of counsel. The Second Respondent was represented by Mr Tim Sheppard of counsel. We are grateful to all three counsel for their written and oral submissions.

The Material Facts

3. As this appears to be the first case before the Employment Appeal Tribunal of competence standards under s.14B of the 1995 Act, we set out the facts as found by the Employment Tribunal. These appear at paragraphs 13-35 of the judgment:

13. Mr Burke qualified with a 2.1 MA Honours degree in History in 1995 and commenced a career in teaching after being awarded a Distinction in his PGCE.

14. In June 2001 he was diagnosed with Multiple Sclerosis and decided in 2005 to embark on a change of career to the Law. He completed the Academic stage of legal training in the Common Professional Exam at Sussex University in 2006 and applied for the Legal Practice Course at the Guildford Branch of the College of Law. He liaised with the College authorities Special Needs Tutor and before he commenced the course a learning contract was agreed that provided a number of adjustments set out in document 59 dated 16 October 2006.

15. Part way through his final exams in February 2007 he sought to re-negotiate adjustments in the form of a second learning contract which is at document 97. He was provided with additional time and special arrangements for re-sitting his examinations starting in August 2007 including 60% extra time; the assistance of an amanuensis who could also be required to act as a reader; additional breaks by stopping the clock for 15 minutes per hour or pro-rata; adjustments to the examination timetable if necessary to allow one clear day between exams provided a confidentiality agreement would be signed in relation to any exam which would thereby be postponed; his own room for taking the exam; and, an extra desk.

16. In September 2007 Mr Burke raised the possibility of further adjustments and asked for alteration of the First Respondent's requirement to sit traditional unseen, supervised and timed exams so that he could take the assessments unsupervised at home (see document 100).

17. Further adjustments were offered on 21 January 2008 by email by Ms Davies for Mr Burke's examinations in February 2008. The College of Law offered to arrange and pay for accommodation in Guildford for the exam period and for each examination to be split and sat over 2 days subject to his signing a confidentiality undertaking which would mean the exam period would last for 2 weeks instead of one.

18. Mr Burke submitted an ET1 form on 22 January 2008 prior to commencing the examinations.

19. The further adjustments were offered to meet the concerns of Mr Burke that he would find it difficult to travel each day from Brighton (his home) to Guildford and he lacked the financial resources to stay nearer the College for the exam period, and to address his concerns regarding fatigue and memory problems.

20. On 13 February 2008 Mr Burke signed a further learning contract which set out all the special arrangements agreed for the re-sitter examinations starting in February 2008 as follows:

• 60% extra time

• May hand write or use an amanuensis (who may also be required to act as a reader) or use a computer (to be supplied by the College)

• Stop the clock limited to 15 minutes per hour or pro-rata (based on the extended examination time) to be taken as and when required

• Extra desk

• High backed chair with adjustable arms

• Own room

• Exam questions and any advance reading to be produced on cream coloured paper

• Exam room on ground floor or accessible by lift

• Exam timetable to be adjusted as per the schedule in the confidentiality agreement to split each examination paper into two parts

• Justin to sign a confidentiality agreement in relation to any examination or part thereof which is thereby postponed

• Accommodation at the YMCA, Guildford throughout the exam period to be paid for by the College.

21. The accommodation at the YMCA was inspected by Ms Davies who found it to be satisfactory for the purpose. Mr Burke would have his own room, disabled parking facilities and overall the hostel was comfortable and of an acceptable standard for preparing for exams.

22. The exam timetable was from 18 to 29 February 2008. As the exams were split none lasted more than 2 hours, to which 60% extra time as well as up to 15 minutes per hour for rest breaks based on the extended time would be added. The timetable is appended to document 194.

23. The First Respondent was unwilling to make further adjustments to the learning contract set out in document 97 and the question for us is whether the additional adjustments sought by the Claimant fall within the provisions of DDA 1995.

24. During the course of the hearing we heard considerable evidence concerning process and the division of responsibilities as between the First and Second Respondent. Since the reasonable adjustment duty is an objective test (see Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 and the subsequent line of authorities) it is not necessary for us to make findings of fact in this regard.

25. The LPC is a vocational course designed to prepare students for practice. The guidance for those enrolling on the LPC (doc 245) explains the distinction between the academic study of Law and the preparation for practice as a Trainee Solicitor, i.e. the vocational aspects. The difference in approach of the LPC in comparison to a Law Degree or Graduate Conversion Course was stressed and it was said that the teaching methods and assessments in the LPC are designed to replicate transactional aspects and the day-to-day working life of a Solicitor:

"Busy practitioners simply do not have the time to preface every new problem which you may encounter as a Trainee with a couple of lectures and perhaps a tutorial before you can reasonably be asked to prepare some advice on the matter".

26. Unfortunately Mr Burke failed a number of the examinations. He applied for a concession to the LPC Board of Examiners and was notified on 8 March 2008 that his concession application had not been successful. As he had failed business accounts three times, he was told that he had now failed the LPC and was not entitled to any further re-sits (Tab 241). with the results of all his exams from July 2007 to May 2008 are appended to that document. Whilst he had successfully passed all the skills and pervasive aspects, he had failed the Business Accounts three times and the Property and Litigation exams on two occasions.

27. By way of background at the end of the one year course in July 2007 Mr Burke failed each of the three exams in Business, Property and Litigation. He also failed the three electives he took in Advanced Criminal Law, Employment Law and Family Law. Of the nine categories of skills and pervasives he passed five and by October 2007 had passed the remaining four. He was unsuccessful in retaking the Family Elective in October 2007 and also failed his second attempt at the Business exam in October 2007. In May 2008 he failed the Business exam for the third time and the Property and Litigation exams for the second time.

28. The purpose of the examinations, or supervised assessment (the term was used interchangeably) is to assess the ability of the candidate to demonstrate their competence and capability in the subject matter under time pressure. The papers are drafted to enable a candidate to demonstrate skill and knowledge and marshal those attributes under time pressure as an essential part of working as a Solicitor. This is important because of the workload of most Solicitors and the widespread use of time recording as a basis for calculating Client charges, firm profitability and fee earner productivity.

29. The examinations are intended to replicate the transactional aspects of practice in acknowledgment of the fact that Solicitors and their Trainees often work under pressure and extreme time constraints and need to react quickly to the needs of a Client, or other deadlines - whether imposed by the client, a Court or Tribunal or another party to a commercial transaction for example.

30. The College of Law provides for open book examinations so candidates are able to access appropriate texts and notes in recognition that life in practice is not a pure memory test, but a Solicitor is expected to carry a basic body of knowledge within his or her memory and be able to access further or detailed information quickly.

31. The Solicitors Regularity Authority lays down that examinations for the LPC must be at least 3 hours long, so that enough of the syllabus and aspects of the Course can be tested in exam conditions and there is enough material for the exam to be sufficiently testing. By setting a minimum length for the exam, it does not imply that institutions may give unlimited time to students in which to take the exam.

32. The First Respondent requires the exams to be supervised in order that it is the candidate's own skills and knowledge which are tested and to preserve the integrity and transparency of the process. It is to avoid any risk, or danger of collusion, plagiarism or cheating or unfounded accusations of such things.

33. The SRA requires that the subject assessment must take the form of an examination or some other form of supervised assessment. The matter had been considered by an LPC Working Group which had reviewed the prescribed method of assessment of the LPC written standards and assessment guidelines their various elements and whether the compulsory areas could be done by way of takeaway course work which are all short assessments. They concluded that:

"The Group acknowledged that as a Vocational course, many elements of the LPC are assessed in a way which is designed to replicate the transactional aspects of practice. LPC assessments should also, as far as possible, mimic the sort of time based pressures under which Trainee Solicitors find themselves with having to deal with a Client file. It is not educationally appropriate for a Vocational Course to be assessed via academic, essay style questions but rather by a series of questions based around one or more fact patterns, supported by realistic documentation and from which a student must discern how to advise and act on behalf of a Client... the Group also agreed that by assessing the compulsory and elective subjects and accounts in timed, supervised conditions, problems associated with plagiarism and collusion were reduced... this is an important factor as any student found guilty of an assessment offence on the LPC as well as having to accept assessment related penalties, would have their character and suitability to qualify as a Solicitor investigated by the Law Society." (tab 218)

It was the Second Respondent which imposed the supervision requirement.

34. It is not the strict policy of the College of Law that examinations must be taken on their premises although it is the usual practice. The SRA did not have views on the matter. Mr Burke's concern about taking the exams in Guildford related to the travel time and stress. For example at page 3 of document 178 he says as follows:

"They require me now to travel from Brighton (at least a 90 minute journey in both directions), and to arrive on time for an exam, on several consecutive days, would provide a great deal of additional stress and uncertainty for me, at a time when I am still taking the medication which my GP has prescribed for me as a result of this situation, and which would inevitably be additionally stressful, due to preparing for and then taking an exam. I do not now have the financial resources available to enable me to stay nearer to the College during that time.

"If I were to take the exam unsupervised at home, or even supervised at home, it maybe that I will complete it in the allotted time for all non-disabled students. In the alternative, it maybe that in the event of either situation, I will be struggling to finish the exam within a 4 day period. I can't answer that, until I am given the opportunity to try. But I do consider that would be a reasonable adjustment in my particular circumstances."

35. Lorraine Davies and Ms van der Klugt considered Mr Burke's concerns as to the venue of the exam together with Mr Burke's request for a period of days in which to complete each exam at home. They concluded it would be logistically impractical for the Claimant to be invigilated at home over a period of several days. Given that it was the stress and fatigue caused by the travelling from the Claimant's home to Guildford that appeared to be the main obstacle, they offered to make adjustments by the College of Law paying for Mr Burke's accommodation at the YMCA in Guildford over the exam period of 2 weeks. He accepted the offer. He was also given a room of his own in which to take the exam within the College of Law.

The Employment Tribunal's Conclusions

4. Again, in the context of this case we think it important to set out the Employment Tribunal's conclusions in full:

"Conclusions

37. In the final analysis we are concerned with a fairly narrow point - the extent of the reasonable adjustment duty for qualification bodies on the facts of this case. It is accepted that Mr Burke is disabled and been decided by a previous tribunal at a previous Hearing that both Respondents are qualification bodies.

38. The first question to address is whether any of the three PCPs are competence standards. If so, the reasonable adjustment duty would not apply.

39. We find that the requirement to take an exam in a particular place is not a competence standard: it is merely an administrative arrangement in the process by which competence is assessed. We further find that the requirement for an exam to be supervised is not a competence standard but a method or mechanism for policing or ensuring that the exam paper completed is the candidate's own work, and that too does not appear to us to constitute a competence standard.

40. The timing requirement is however a competence standard. It falls within the definition of "other standard" in s.14A(5) DDA1995, which was applied by one or other or both the First and Second Respondents for the purpose of determining whether all the LPC candidates had the particular level of competence or ability to undertake work under pressure of time within a time limited period. The ability to work at speed under time pressure is of itself a competence. The reasonable adjustment duty does not apply to it.

41. The next question therefore is whether the PCPs of supervision and location placed Mr Burke at a substantial disadvantage in comparison with persons who are not disabled. Supervision per se does not disadvantage Mr Burke in comparison to those who are not disabled. It was not the fact of supervision that was the difficulty but the interplay between Mr Burke's request to spend several days working on the exams at his own home that led to practical difficulties vis-à-vis supervision. To the extent that supervision should be taken in isolation however, we do not consider it places Mr Burke at a substantial disadvantage.

42. If however we were wrong about that, we find that the removal of the supervision aspect of an exam would not amount to a reasonable adjustment in any event. The purpose of supervision is, as we have set out in our findings of fact above and as described by Ms van der Klugt and Ms Davies, to ensure that the work is the candidate's own and to protect against risk of actual or indeed unfounded allegations of cheating, collusion or plagiarism. It cuts to the heart of the transparency and integrity of an assessment process. It seems so obvious it hardly needs mentioning: that effective supervision gives confidence and trust that the assessment is an accurate assessment of the particular person's ability.

43. Supervision can come in many forms - we note in passing that the Claimant was provided with a room of his own for the exams and so an adjustment had already been made by the First Respondent in this regard. He was not required to take the exam in the large invigilated exam hall, but the supervision consisted of a room in the College of Law at Guildford where he could take the exam within the time agreed with him.

44. In considering therefore, the reasonableness of the adjustment sought of the removal of the supervision requirement we look to s.18B(1). For the exam to be unsupervised would not, of itself, assist with Mr Burke's tiredness, (s.18B(1)(a)); it would be impracticable given the purpose of an examination to ensure a valid and respected assessment (s.18B(1)(b)); it could cause the loss of credibility and integrity of the system, a cost, albeit not a financial one (s.18B(1 )(c)) and for these reasons would be unreasonable, we find.

45. The remaining aspect is location. Again it is difficult to consider the matter in isolation from the other adjustments sought by the Claimant, but that is where we shall start. The requirement to take the exam at the Guilford College of Law was a PCP that would place Mr Burke at a substantial disadvantage in comparison with persons who are not disabled since his disability leads to fatigue, stress and tiredness. If he was required to travel from Brighton to Guildford each day during the exam period we therefore accept he would have been placed at a substantial disadvantage.

46. The Respondent made adjustments to the PCP in that they arranged for accommodation for a period of 12 days at the YMCA in Guildford. Ms Davies had assessed the suitability of the YMCA including its disabled parking facilities in advance and considered it satisfactory. Mr Burke raised no objection to the standard of accommodation and facilities at the YMCA when he agreed the revisions to his learning contract on 13 February 2008. The adjustment removed the travel element which is what would have placed Mr Burke at a disadvantage. In his correspondence with Ms Davies he explained that he had stayed in Guildford during the Course itself which had enabled him to participate fully and productively in the Course. We find that the Respondent therefore complied with its reasonable adjustment duty in this regard by making the adjustments that they did.

47. The question Mr Burke poses is should they have gone further to allow him to take the exams at home. We find that this would not amount to a reasonable adjustment on the facts of Mr Burke's case - although we could envisage there might well be cases where such an adjustment might be necessary. Again, let us analyse the request by reference to s.18B(1) DDA 1995. The financial costs of arranging invigilation at Mr Burke's home over a protracted period would be substantial, assuming the invigilators would be willing to undertake the task. It would be impracticable to organise - the list of suggestions by Mr Burke involving oaths before the magistracy and so on are illustrative of the problems associated with it. The disadvantages identified by Mr Burke - stress, fatigue and tiredness - could be reduced by the measures taken by the Respondent, they did not require Mr Burke to take the exams at home. If it were a case of a disabled person requiring particular equipment available in his home that would not be moved to an examination centre, the position might be different. Here it is general tiredness and fatigue - matters easily met by the accommodation provided near the exam site and the splitting of the exams and extension of the exam timetable together with the breaks etc provided by the Respondents.

48. When looked at in the aggregate, what Mr Burke was seeking was clearly unreasonable. He raised legitimate concerns about the fatigue he would experience from the unadulterated exam format. The First Respondent met his concerns with extensive adjustments - not only the ongoing arrangements during the Course which were not relevant for the purposes of this decision - but were specifically in relation to the re-sit examinations of February 2008 as set out in paragraph 20 above. Spreading the exams over the course of several days, breaks, extra time added for him to take each exam and so on.

49. Mr Burke was treated with courtesy, dignity and respect in all his correspondence and dealings with both the First and Second Respondent. The learning contract was revised and reviewed periodically at Mr Burke's request and the First Respondent was open to the suggestion of adjustments and how these could best meet the disadvantages experienced by Mr Burke on account of his disability."

The Disability Discrimination Act 1995 (As amended)

5. The general duty of qualification bodies to make reasonable adjustments to accommodate disabled persons is set out in s.14B(1)(a) of the 1995 Act:

"(1) Where -

(a) a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body, or

(b) any physical feature of premises occupied by a qualifications body,

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."

6. The term "competence standard" is defined in s.14A(5) as meaning:

"An academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability."

7. The Equality and Human Rights Commission has issued the Disability Discrimination Act 1995 Revised Code of Practice: Trade Organisations, Qualifications, Bodies and General Qualifications Bodies ("The Code"), which courts and tribunals "shall take into account" under s.15(4)(b) of the Equality Act 2006. The Code of Practice is currently the only legal guidance on the meaning and application of the term "competence standard".
8. The 2008 Code has a section headed, "What is a competence standard?" It says this:

"8.27 The Act says that a competence standard is an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability. So, for example, having a certain standard of eyesight is a competence standard required for a pilot's qualification. Having a certain level of knowledge of the UK taxation system is a competence standard for an accountancy qualification.

8.28 Qualifications bodies are likely to impose various requirements and conditions upon the conferment of a professional or trade qualification. However, any such requirement or condition only amounts to a competence standard if its purpose is to demonstrate a particular level of competence or ability. A requirement that a person has a particular level of knowledge of a subject, for example, or has the strength or ability to carry out a particular task or activity within a set period of time, would probably be a competence standard.

8.29 On the other hand, a condition that a person has, for example, a certain length of experience of doing something will not be a competence standard if it does not determine a particular level of competence or ability. The following are examples of requirements which are therefore unlikely to amount to competence standards:

a requirement that a candidate must have at least ten years continuous experience (a person who has two periods of experience which total ten years may have equivalent ability and experience);

a requirement that a candidate must complete twelve qualifying sessions (for qualification as a barrister);

a requirement that a candidate must be currently professionally employed in a particular field.

8.30 Generally, there is a difference between a competence standard and the process by which attainment of the standard is determined. For example, the conferment of many qualifications is dependent upon passing an academic examination. Having the requisite level of knowledge to pass the examination is a competence standard. However, the examination itself (as opposed to performance in it) may not involve a competence standard – because the mechanical process of sitting the examination is unlikely to be relevant to the determination of a relevant competence or ability.

8.31 Sometimes, of course, the process of assessing whether a competence standard has been achieved is inextricably linked to the standard itself. The conferment of some qualifications is conditional upon having a practical skill or ability which must be demonstrated by completing a practical test. The ability to take the test may itself amount to a competence standard."

9. The Code goes on in a section headed, "What is the significance of this distinction?" to say this:

"8.32 Special rules apply in relation to the application of a competence standard to a disabled person by or on behalf of a qualifications body. The effect of the Act is that:

there is no duty to make reasonable adjustments in respect of the application of a competence standard, and

in the limited circumstances in which less favourable treatment of a disabled person in the application of such a standard may be justified, justification is assessed by reference to a special statutory test (see paragraph 8.36).

8.33 It follows that it is very important to ascertain whether a particular provision, criterion or practice of a qualifications body is a competence standard and, if so, whether the matter at issue concerns the application of that standard to the disabled person concerned. Although there is no duty to make reasonable adjustments in respect of the application of a competence standard, such a duty is likely to apply in respect of the process by which competence is assessed."

10. Immediately following paragraphs 8.32-8.33 of the Code an example is given which is quoted by the Employment Tribunal in paragraph 12 of its judgment. It says this:

"A woman taking a written test for a qualification in office administration asks the relevant qualifications body for extra time for the test because she has dyslexia. This is likely to be a reasonable adjustment for the qualifications body to make. She also asks if she can leave out the questions asking her to write a business letter and to précis a document, because she feels these questions would substantially disadvantage her because of her dyslexia. The qualifications body would not have to make this adjustment because these questions are there to determine her competence of writing and précising, so are part of the competence standard being tested."

The Notice of Appeal

11. The Notice of Appeal is dated 8 October 2009 but the grounds of appeal were amended pursuant to the order of HHJ Reid QC, made at a rule 3(10) hearing on 9 June 2010. They appear at EAT bundle pages 15-17. The First Respondent's Answer is at EAT bundle pages 19-20 and the Second Respondent's Answer is at EAT bundle pages 21-24. They have of course been supplemented by the oral and written submissions of counsel.

Ground 1: The Time Requirement

12. Ground 1 argues that the Employment Tribunal was in error at paragraph 40 of its Judgment that the Respondents' requirement that the Appellant take his LPC examinations within particular time periods ("the Time Requirement") was a competence standard for the purposes of s.14A(5) of the DDA 1995, such that no duty to make adjustments arose on the part of either Respondent under s.14B(1)(a) of the DDA.
13. Mr Nicholls' first submission was that the Employment Tribunal has asked itself the wrong question. It did not ask itself, what was this exam testing? It ignored the guidance in the Code. He submits that unless the standard is one applied by the qualifications body for the purposes of assessing that a person has a competence, then it is not a competence standard. The Tribunal's reference to the ability to work under time pressure as "a competence" does not assess the statutory question. Mr Nicholls submits that the question the Tribunal should have asked is whether the competence of completing the examination in time is a standard which the Respondents apply in order to assess competence.
14. We disagree. In our judgment the Employment Tribunal did ask itself the correct question. It referred to the relevant statutory provision: judgment paragraph 7-8; the Code: paragraphs 8.08; 8.30 and 8.33: judgment paragraphs 9-11. It set out the purpose of the examination as being to "assess the ability of the candidate to demonstrate their competence and capability in the subject matter under time pressure": judgment paragraph 28. The Tribunal went on to state in paragraph 29 of its judgment that:

"The examinations are intended to replicate the transactional aspects of practice in acknowledgement of the fact that Solicitors and their Trainees often work under pressure and extreme time constraints and need to react quickly to the needs of a Client, or other deadlines - whether imposed by the Client, Court or Tribunal or another party to a commercial transaction, for example."

15. In paragraph 33 of its Judgment the Tribunal refer to an LPC Working Group and quote part of its conclusions:

"LPC assessments should also, as far as possible, mimic the sort of time-based pressures under which Trainee Solicitors find themselves with having to deal with a Client file."

16. In our judgment the Employment Tribunal clearly had the distinction raised by paragraph 8.3 of the Code in mind. It asked itself the right question.
17. Mr Nicholls submitted in his skeleton argument (but not really in his oral submissions) that the Tribunal had failed to have any regard to the aim of Parliament in exempting competence standards from the duty to make reasonable adjustments. As we have already said, the Tribunal clearly had the relevant sections of the DDA and the Code in front of it. Each party was represented. The Claimant was represented by an Employment Case Worker from the Disability Law Service and the two Respondents by separate counsel. There is nothing in this submission.
18. Mr Nicholls then submitted that the Tribunal failed to consider and have regard to the contradictions in the Respondents' case. The case before the Tribunal was that the time within which examinations were to be completed reflected a competency which the candidates needed to demonstrate and yet they had made adjustments for the Appellant by agreeing an additional 60% time for him to complete his examination. There was an inherent contradiction in this approach. Mr Nicholls supported this by reference to the Respondents' document: LPC Assessment Requirements at EAT bundle tab 10; the LPC Programme Demands at EAT bundle tab 11; and the LPC Programme Specification at EAT bundle tab 12. Mr Nicholls submits that there was no document before the Tribunal which stated that time is a factor in marking the exams.
19. In fact the Programme Demands document at EAT bundle tab 11 pages 151-152 make it crystal clear that the examinations are time-limited. Furthermore, as paragraph 6 of the Judgment makes clear, the Tribunal had before it four lever arch files of documents and heard live evidence over three days. They subsequently received written submissions from all parties. In terms of the oral evidence it heard this evidence from witnesses for the Respondent explaining the distinction between academic and practical examinations and the need for the time requirement:

•    Lorraine Davies (Deputy Director, Vocational and Head of the Legal Practice Course at the Guildford Centre of the College of Law): EAT bundle tab 15 at paragraph 47 which was reproduced almost verbatim at paragraphs 29-30 of the Employment Tribunal's Judgment;

•    Diana van der Klugt (Senior Lecturer and Special Needs Tutor); EAT bundle tab 17 at paragraph 72. This paragraph was repeated almost verbatim at paragraph 28 of the Employment Tribunal's Judgment.

20. The Employment Tribunal also had in front it the LPC guidance for those enrolling on the LPC which it quoted in paragraph 25 of its Judgment. It also had in front of it the report of the LPC Working Group which emphasised that, "LPC assessments should, as far as possible, mimic the sort of time-based pressures under which Trainee Solicitors find themselves with having to deal with a Client file": judgment paragraph 33.
21. The only conclusion we can come to is that the Tribunal had a significant amount of evidence upon which to base their finding that the time requirement was a competency standard. This was a finding which the Employment Tribunal was entitled to make given the evidence they had heard.
22. There is no doubt as a matter of fact that the Appellant was granted an additional 60% time to complete his examination. The Tribunal were clearly aware of that fact; judgment paragraph 20. We do not accept Mr Nicholls' submission that the Respondents were facing in opposite directions. The fact that additional time is granted within which to carry out the exam does not of itself mean that time was not a competency standard, for these two reasons. First, the fact that an adjustment is made is of no evidential value. It does not mean that a matter is not a competency standard. The Respondent is and was entitled to make adjustments to competency standards and did so. However, that does not automatically mean that it was required to do so by virtue of the DDA. Second, there is 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).
23. In this case the evidence of Clare Gilligan apparently was that any extension of time in excess of 100% of the original examination time would not have maintained the integrity of the examination process. This was apparently said in oral evidence: see Ms Prince's written submissions to the Tribunal: EAT bundle tab 20 paragraph 20. Mr Nicholls did not challenge this submission which is contained in paragraph 13 of Ms Prince's skeleton argument.
24. Finally, Mr Nicholls submits that this part of the Employment Tribunal's Judgment is perverse. It is only necessary to refer to the well known case Yeboah v Crofton [2002] IRLR 634 at a paragraphs 92-95 per Mummery LJ. The test is well known. The hurdle is a high one for an Appellant to surmount. For the reasons we have endeavoured to give we are firmly of the view that this decision was not perverse.

Ground 2: Meek

25. Mr Nicholls' bases his submission upon the well known decision of Meek v City of Birmingham District Council [1987] IRLR 250 CA and in particular paragraph 12 of the judgment of Bingham LJ (as he then was). He also relies upon Anya v University of Oxford [2001] ICR 847.
26. This ground of appeal relates to "the Site Requirement". The Employment Tribunal decided that the requirement to take the exam at the Guildford College of Law was a PCP that would place Mr Burke at a substantial disadvantage in comparison with persons who were not disabled since his disability led to fatigue, stress and tiredness. If he was required to travel from Brighton to Guildford each day during the exam period he would have been placed at a substantial disadvantage: judgment paragraph 45.
27. The Tribunal went on to hold that in agreeing to pay for Mr Burke to stay at the Guildford YMCA during the exam period in February 2008, rather than having to travel from his home in Brighton, the First Respondent made a reasonable adjustment to take account of the fatigue, stress and tiredness that Mr Burke suffered on account of his disability: judgment paragraphs 46-48.
28. Mr Nicholls criticises this finding because it is based upon the fact that Ms Davies had assessed the suitability of the accommodation and she concluded that it was satisfactory: judgment paragraph 46. The Tribunal note that Mr Burke raised no objection to the standard of accommodation and facilities at the YMCA when he agreed the revisions of his learning contract on 13 February 2008. That learning contract was signed some five days before the examinations began on 18 February 2008. He made no complaints during the course of the examinations. Mr Nicholls submits that the Tribunal made no reference nor findings about the complaint made by the Appellant on 19 March 2008, after the examinations had concluded. The complaint was made by email and is at EAT bundle tab 13. Mr Nicholls submits that the Appellant has no way of knowing what conclusion the Tribunal came to in respect of those complaints or why, as appears to be the case, it rejected them.
29. It seems to us that there is a simple answer to this submission. Although permission was given by HHJ Reid QC to argue the point in the Amended Grounds of Appeal, the point was simply not argued before the Employment Tribunal. The Employment Tribunal deal with the Appellant's case before it in paragraphs 47-48 of its judgment. The answer is in the first line of paragraph 47:

"The question Mr Burke poses is should they have gone further to allow him to take the exams at home."

30. As Ms Prince points out in her written and oral submissions there was no suggestion during that hearing that had the Respondent found better accommodation that would have been a reasonable adjustment. Throughout the hearing the Appellant was arguing that the only reasonable adjustment would be to permit him to take the examinations at home. This is evidenced by (1) the evidence of Ms Davies that the accommodation provided was of an acceptable standard for preparing for exams; (2) that the Appellant made no objection to the standard of the accommodation when he agreed his new learning contract in February 2008; (3) he made no complaint during the course of the examinations; (4) his two criticisms of the accommodation were (a) noise and disturbance (at paragraph 61-62 of his witness statement) and (b) that someone had parked in his reserved parking space 5 out of the 12 nights he was there (paragraph 64 of his witness statement): EAT bundle tab 28; (5) the Claimant's representative's closing written submissions did not deal with the issue of the suitability of the accommodation: EAT bundle tab 19.
31. It is therefore clear that the Employment Tribunal directed its mind to the issue which needed to be determined and reached conclusions which were compliant with Meek and consistent with the evidence which it had heard. Put simply, the issue now raised by Mr Nicholls was simply not flagged up by the Appellant before the Employment Tribunal.

Conclusion

32. For these reasons the appeal is dismissed.