Ask the panel

August 25, 2006

Worried about your employment, maternity, pension rights? Send your questions to The Times Higher advice panel.

A student applied to study chemistry at our university but was refused a place on the grounds that she did not take A levels. She has ME, which leads to chronic fatigue and muscle weakness. She completed an HND and an access course, and her GP has written stating that she was predicted As in her A levels, which she could not take because of her disability. University policy is not to accept access courses in lieu of A levels. Is our policy discriminatory?

* The University and College Union panellist says: "If only all questions were as easy to answer as this one. I think there is no doubt whatsoever that you are discriminating against the student on the grounds of her disability.

"The university is required to make reasonable adjustments to enable students with disabilities to participate. The fact is that the student actually does have equivalent qualifications to A levels.

"The testimony of her doctor makes it clear that she is able to undertake the course and that only her disability prevented her from taking her A levels. The changes to disability discrimination law due to come into effect on September 1 are not likely to change the position in relation to this case. In these circumstances, if the student chose to take her case to County Court, it would be very surprising if the court did not find that the university had failed in its duty to make reasonable adjustments.

"From December, when you will be required to have a disability equality scheme in place, your failure to meet your legal obligations will be even worse. The disability equality duty specifically states that you must 'take steps to meet disabled people's needs, even if this requires more favourable treatment'. To apply an absolutely rigid entry requirement that takes no account of disabled people's needs clearly does not fulfil this element of the duty."

* The panellist from the Equality Challenge Unit says: "Under laws relating to discrimination in admissions (namely the Special Educational Needs and Disability Act, which brought Part 4 of the Disability Discrimination Act into force), the policy of requiring particular qualifications could be discriminatory if, for a disability-related reason, the applicant had not been able to take those qualifications.

"There is no requirement for universities to lower academic standards in relation to disabled applicants. The university needs to assess every applicant's ability to complete the chemistry course to make an informed decision about whether to accept them or not. The department's usual way of doing so is to use A levels as a proxy for academic ability.

In this case, the applicant hasn't taken A levels because of a disability-related reason; so, in order not to discriminate, the university needs to identify other method(s) of assessing her ability - such as the content of her HND and access courses and her predicted A-level grades, as her GP suggests.

"If, after considering the content of those courses and grades, tutors are still unclear about whether the applicant would have the academic ability to succeed on the course, a further method of assessing her ability could be introduced, such as an interview."

She adds: "It is likely that the chemistry department admissions tutors might also wonder how the applicant will cope physically with some of the demands of the course.

"Reasonable adjustments can be made to elements of a course that are not academic (or 'competence') standards. This means that only when the principle of the candidate's academic ability has been established should other areas be looked at, with a view to making reasonable adjustments.

"Disability discrimination law in relation to post-16 education changes on September 1, 2006 but these changes will not require a different approach to the one outlined above. The Disability Rights Commission's new Code of Practice: Post-16 Education can be found on its website."

This advice panel includes the University and College Union, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party. Send questions to advicepanel@thes.co.uk

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