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Computer-based exam discriminated against blind candidate

US company found liable under UK law

Ruling on jurisdiction

At a pre-hearing review, PMI argued that it was outside the tribunal's jurisdiction because it was an American corporation.

In its employment provisions, the legislation makes clear that the DDA "applies only in relation to employment at an establishment in Great Britain". Its provisions on qualifications bodies are silent on jurisdiction. The tribunal reasoned that it must be assumed that these provisions would be limited to persons falling within Great Britain. Latif said the acts concerned took place in Great Britain; PMI said they took place in Pennsylvania.

Pre-hearing tribunal chairwoman Jessica Hill said PMI's argument would only be relevant if Latif was also outside Great Britain. "But the claimant is within the jurisdiction in that she worked in England and the exam which caused difficulties took place in Scotland," she wrote.

"In my view, the fact that the respondent was in a position to make arrangements within Great Britain for the claimant to pursue a course and potentially receive a qualification from them in Great Britain, meant that they became persons who moved within the jurisdiction of the legislations," she continued. "The place where the claimant suffered the alleged less favourable treatment was within the jurisdiction of Great Britain and as such her complaints are ones that can be heard by the tribunal."

Struan Robertson, editor of OUT-LAW.COM and a technology lawyer with Pinsent Masons, said this ruling could be significant in other cases, notably cases of web accessibility.

"A blind person in the UK could argue a right to sue a US company in a UK court for discrimination if the US company has a website that is not accessible to him and he can show that that US company has taken orders from other UK consumers," he said. "The tribunal's reasoning could be influential on a court, though it won't be binding."

We put this to Sarfraz Khan, senior legal officer at the DRC, who worked with Latif on her case. "It might have a bearing," he agreed. "There is a possibility that the judgment might usefully inform a court considering a Part 3 web access case as to whether jurisdiction can be made out where that provider is ordinarily based outside of Great Britain but is providing access to goods and services within Great Britain through a website," he said.

Pointing out that he was expressing his own opinion, not the official view of the DRC, he continued: "This is a similar situation to Sam Latif's case in that she was accessing an internationally-recognised qualification provided by an overseas company, albeit through means that involved some delivery in the UK. Likewise people ordering goods within Great Britain are likely to have them delivered by whatever means might be used by the company who are selling those products via the website but the website itself may not be accessible and in those circumstances a court might determine that they are liable."

He added that question marks remain. "I'm sure it needs further legal argument in a particular case before we're any the wiser as to whether that does or does not amount to something that the DDA captures in terms of its coverage," he said.

Ruling on the exam arrangements

The Employment Tribunal at Reading reasoned that the test centre commissioned by PMI could have loaded the exam onto one of its own stand-alone computers with JAWS installed and the questions in Word format, without risk of cheating. The test centre was already licensed to use Microsoft Word and JAWS could have been installed by Latif using a token and later uninstalled. Given that Latif runs JAWS so that it reads text 60 per cent faster than a human voice, Latif would then have been able to complete the exam in significantly less time than the eight hours that it took with a reader.

Latif had not suggested this approach herself; but the tribunal referred to the DRC's Code of Practice which makes clear that there is no onus on a disabled person to suggest what adjustments should be made: it is for the organisation to consider whether any reasonable adjustments can be made to overcome the disadvantage.

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