Project Management Institute v Latif (2007, IRLR 579)
The duty under the Disability Discrimination Act 1995 (DDA) to make reasonable adjustments includes qualifications bodies, although its obligations are not as extensive as those of an employer.
In Project Management Institute v Latif (2007, IRLR 579), the Employment Appeal Tribunal (EAT) considered, among other things, how the burden of proof operates in a DDA case where the claimant alleged there had been a failure to make a reasonable adjustment.
Ms Latif is registered blind and so is a disabled person within the meaning of the DDA 1995. In 2005 she registered to take a project management examination with the Project Management Institute (PMI).
She asked them to make certain adjustments, such as allowing her to take her own laptop into the examination or agreeing that her screen reading software be installed on the examination centre computer.
PMI agreed that the rules it normally applied would operate to her disadvantage, and allowed her to have a reader. It also gave her twice the amount of time to do the exam, but said it was unnecessary for her to take in her own computer.
Although she passed the exam, she lodged a disability discrimination claim arguing that PMI had failed to be flexible enough in the adjustments it made for her to take the exam.
And the tribunal agreed with Ms Latif. It said that PMI ought to have allowed her to take the exam on a stand-alone computer which had the necessary software installed (a suggestion first made by Ms Latif at the tribunal hearing). The costs involved would have been modest.
It felt that PMI had treated the blind as a generic class rather than focusing on Ms Latif's individual needs. Had it allowed the adjustment that Ms Latif wanted, the disadvantage facing her would have been significantly reduced.
The EAT said that although the tribunal had been wrong to say that PMI had a duty to carry out a proper assessment, the tribunal would still have reached the same conclusion – that PMI had adopted an inflexible approach and had not listened to what Ms Latif had to say.
The point, said the EAT, was that although a failure to carry out a reasonable adjustment was not a breach of PMI’s duty, it could not then rely on that “omission as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified.”
Nor had the tribunal failed to take account of the fact that PMI was a qualifications body and not an employer, with the result that the potential scope of adjustments required of them was much more limited.
It did agree with PMI, however, that the tribunal was wrong in its approach to the burden of proof. Paragraph 4.43 of the Disability Rights Commission’s code of practice states that the employee must show that there was a duty to make reasonable adjustments and be able to infer from the facts, in the absence of an explanation, that the employer had breached that duty.
The onus, therefore, was on the employee to identify the “broad nature” of the adjustment required, as it would be an impossible burden on an employer or body to show that there was “no adjustment that could reasonably be made.”
However, it was also right that the employer was in the best position to say whether any apparently reasonable adjustment was do-able. “That is why the burden is reversed once a potentially reasonable adjustment has been identified.”
Although the tribunal was wrong in its approach in this case, it did not make any difference to the outcome as Ms Latif had, in fact, identified an adjustment PMI could make. The question, then, was whether PMI had acted reasonably in failing to take that step and the tribunal was justified in deciding that it had not.
This case is a timely reminder (although the claimant was successful and did not identify the adjustment until the tribunal hearing) that individuals should be proactive in putting forward proposals for reasonable adjustments. This is to enable organisations to understand the broad nature of the adjustment proposed.