The facts

Mr Burke suffers from multiple sclerosis. He requested that adjustments be made when taking examinations in order to qualify as a solicitor. The College gave him extra time, rest periods during the exam and paid for accommodation near the exam venue in order to save Mr Burke from excessive travelling. Although Mr Burke accepted the accommodation, he tried to persuade the College to allow him to sit his exams at home, but the College rejected this, as being invigilated at home was logistically impractical. Mr Burke failed some of his exams and because of his exam history was not entitled to any re-sits. He claimed that the College had failed in its duty to make reasonable adjustments. A tribunal found that it would have been impractical for B to take the exams at home and the College had complied with its duty to make adjustments by reducing the stress, fatigue and tiredness by providing adequate accommodation during the exam period, splitting exams over two days and providing extra time and breaks. When looked at as a whole the College had done all that it could and what Mr Burke was seeking was unreasonable. Mr Burke’s appeal was rejected by the EAT and he appealed.

The judgment

The Court of Appeal agreed with the tribunal and the EAT. The key issue was whether, when viewed as a whole, the College had made adjustments that were reasonable, as it was undoubtedly difficult to treat the supervision, location and time adjustments in isolation. The employment tribunal did engage with the issue of the reasonableness of the adjustments to the time requirement. It identified the effects of Mr Burke’s disability and how they placed him at a disadvantage compared to others and it explained how the various adjustments made by the College, when taken together, addressed those effects. The tribunal also identified that the College had treated Mr Burke with courtesy, dignity and respect throughout, that they were always open to suggestions of appropriate further adjustments and that they reviewed and revised his learning contract periodically at his request. In doing so they met his legitimate concerns. In such circumstances a finding that reasonable adjustments had been made was inevitable.

The implications

This case shows that in some circumstances an employer may have to consider making more than one adjustment to assist a disabled employee who is placed at a substantial disadvantage to address the effects of an impairment when judged as a whole. However, the duty to make reasonable adjustments only goes so far and hinges on the word ‘reasonable’. Here the employer was able to show that the request to be able to take exams at home was not practical. In this respect, the EHRC’s Employment Code’s provisions concerning reasonable adjustments in Paragraphs 6.23 to 6.30 are key since they set out some of the factors, which might be taken into account when deciding what is a reasonable step for an employer to have to take. But as the Code points out, ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case.

Burke v College of Law and anor IDS Brief 946