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Computer-based exam discriminated against blind candidate

US company found liable under UK law

To whom the duty is owed

The three-member tribunal also noted that "a qualifications body should consider, as part of a proper assessment, the circumstances of the individual disabled person, rather than treating him or her as part of a more general class (e.g. 'the blind')".

(This contrasts with the Part 3 duty on a provider of services, such as a shop or a website, where another DRC Code of Practice says the duty to make reasonable adjustments "is a duty owed to disabled people at large". That code goes on to say that it is "not simply a duty that is weighed up in relation to each individual disabled person who wants access to a service provider's services").

The DDA does not require book publishers to make their books accessible and the tribunal implied that the PMBOK Guide was exempt for being a book, not a "provision, criterion or practice or arrangement for the purposes of determining upon whom to confer a professional or trade qualification." So there was no requirement for PMI to make its PMBOK Guide accessible.

But the exam arrangements were covered by the legislation.

"It is clear from the evidence that [PMI] thought that once it had put forward adjustments that it considered appropriate, that was an end of the matter; and no further suggestions would be considered," wrote tribunal chairman Richard Barrowclough. "What is lacking in that approach is any degree of flexibility, of being prepared to listen to the claimant's views and wishes, or to look into or consider alternatives, once a view had been taken."

The tribunal was convinced that Latif could have taken the exam much faster with JAWS. An added advantage would have been the note-taking facility of a computer, rather than "the more laborious verbal instructions to the reader/recorder actually employed in the exam."

Barrowclough concluded: "The respondent has not established that it took all such steps as were reasonable in order to prevent the claimant being put at a substantial disadvantage by their practice of exam questions being read by candidates in a test centre, and thereafter recording their answers."

On 19 October 2006, PMI was ordered to pay compensation of £3,000 for injury to Latif's feelings.

On hearing the result, Latif said she felt relieved. "This whole trauma had been going on for many years now," she said. "It all started a long time before I decided to take legal proceedings. I'd been experiencing so much frustration from the outset. I felt every request I made for a reasonable adjustment was not given the right consideration and the people I was in contact with seemed as if they didn't have responsibility or experience to help me."

The appeal

PMI has appealed the ruling to the Employment Appeals Tribunal. According to Khan at the DRC, PMI is appealing on two grounds. First, it argues that it made reasonable adjustments by providing a reader and extra time and therefore discharged the duty. Second, it is making a technical legal argument about how the burden of proof provisions work in a reasonable adjustments claim.

Asked if he was surprised that they were not appealing on jurisdiction, Khan said: "It was slightly surprising that that wasn't taken further in order to get a more definitive ruling perhaps, if that was necessary, from the Employment Appeal Tribunal. But they may well have – and this is conjecture on my part – they may well have thought that the ruling was pretty definitive and further clarification from the EAT wasn't necessary."

Related links

The pre-hearing review on jurisdiction as a 5-page / 254KB PDF
The pre-hearing review on jurisdiction as a 7-page / 42KB Word Doc
The judgment as a 32-page / 583KB Word Doc
The judgment as a 26-page / 2.9MB PDF
OUT-LAW's legal info about accessibility and usability

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