The University of Bristol has been found to have discriminated against a student who took her own life after it failed to make adjustments for her disability. The case was brought by Natasha Abrahart’s family after her death in 2018.
Universities and other higher education institutions (HEIs) have specific duties under the Equality Act 2010. Under s.91(2), the institution must not discriminate in the way it provides education (and in providing or withholding other services). As well as disability discrimination, the act also covers other forms of discrimination such as discrimination on the basis of gender, race, and sexual orientation. S.91(3) applies specifically to disabled people and requires that HEIs do not discriminate in the way they confer qualifications.
The duty not to discriminate does not just mean the avoidance of direct discrimination. For most people, it is probably quite obvious that an institution cannot refuse to admit a student on the basis that they have a disability.
However, people with disabilities can be exposed to an unfair disadvantage in more indirect or less intentional ways and institutions are under a legal obligation to minimise this. The tragic death of Ms Abrahart shows how the failure to do this really matters.
For the purposes of the Equality Act 2010, a disability is defined as 'a physical or mental impairment [which has] a substantial and long-term adverse effect on [the] ability to carry out normal day-to-day activities'. This can include mental health conditions such as the severe social anxiety from which Ms Abrahart suffered.
There is an increasing awareness of other hidden disabilities such as autism and ADHD. The definition is quite broad and means that, within any substantial student body, it is likely that there will be many students with disabilities.
Indirect disability discrimination arises when a university’s policies and procedures put students with disabilities at a disadvantage compared to other students in the same position. An example, similar to what was seen in Ms Abrahart’s case, would be to require all students to undertake an oral assessment. Although all students would be in the same position, students with severe social anxiety would be at a disadvantage because the circumstances would be more likely to distress them.
HEIs must also avoid discrimination based on something arising from a disability. This is where the discrimination is not because the student is disabled but because of another factor which is caused by their disability. So, for example, if a student is required to attend regular medical appointments as a result of their disability and this is treated by the HEI as a disciplinary matter of poor attendance, this could be discrimination based on something arising from disability.
In many cases, disability discrimination is unintentional and the impact on students with disabilities may not be obvious when the policy is conceived or put in place. It is important for HEIs to be mindful of how new policies could affect students with disabilities and to monitor their effects once in place.
The concept of ’fairness‘ is typically understood as treating everyone in the same way. However, when it comes to disability, the aim is to put everyone in the same position as far as possible. This often means making reasonable adjustments. This could mean changes to the physical environment such as providing step-free access to wheelchair users.
It could also mean changing practical arrangements: for example, allowing students with dyslexia more time to complete a written assessment. In Ms Abrahart’s case, some of the suggestions made included replacing the oral assessment with a written one, providing her with written questions in advance, or moving the assessment to a smaller and less intimidating venue.
HEIs have a legal duty to make reasonable adjustments for students with disabilities. What counts as reasonable will depend on the circumstances of the individual student and the institution. While reasonable adjustments may be put in place as a result of an individual student’s specific request, once the HEI’ is aware of the disability it is responsible for devising and making the adjustments, rather than placing all the responsibility on students to self-advocate.
In the case of Ms Abrahart, the judge noted that, while the idea of making adjustments was 'floated', the university did not actually put any adjustments in place. This suggests that HEIs perhaps need to take a more proactive approach in ensuring that reasonable adjustments are in place for students who need them.
HEIs need to be aware of the extent of the legal obligations they are under to avoid discriminating against disabled students. This includes not only the duty to avoid both direct and indirect discrimination but also a positive duty to make reasonable adjustments.
One of the outcomes of the case brought by Ms Abrahart’s parents was the suggestion that the necessary information about her situation was not shared or acted upon by university staff because of a lack of training. Ensuring that suitable policies are in place is one step but keeping those policies updated, making sure staff are aware of them, and having proper training on how they work in practice is essential.
This article was written by Clemency Pleming, trainee solicitor in the employment team.