Open University student unable to attend live tutorials awarded over £30k in damages for disability discrimination

About this case:

• Citation:
  [2024] SC EDIN 33
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Julius Komorowski

Louise Stevenson argued that the change in policy constituted disability discrimination that put her at a substantial disadvantage compared to her fellow students. The defenders accepted that the pursuer was disabled but disputed the extent of any compensable loss.

The case was heard in Edinburgh Sheriff Court by Sheriff Julius Komorowski. Briggs, advocate, appeared for the pursuer and Olson, advocate, for the defenders.

Empty room tutorials

In 2015 the pursuer enrolled in a part-time psychology degree course provided by the defenders. Since 1994, and throughout her time studying, the pursuer had suffered from bulimia nervosa and associated mental health problems, which she managed by a rigorous regime of eating and exercise. In her first two years of study, she performed well as a student, and had been provided with recordings of online “live” tutorials.

For the academic year 2017/18, the defenders altered their policy on recording tutorials so that instead of tutorials being recorded as they were delivered, recordings of “empty room” tutorials would instead be provided. It was averred by the pursuer that this put her at a disadvantage compared to those without her mental health needs due to the empty room recordings being comparatively inferior to a live tutorial.

As a result of being unable to complete two marked assessments in that year, the pursuer was assessed as having failed and unable to continue her studies. It was submitted for the pursuer that this had materially damaged her prospects of becoming a forensic psychologist and the defenders had failed in their duty under section 20 of the Equality Act 2010 to take such steps as were reasonable to avoid that disadvantage.

The defenders did not dispute at the proof that the pursuer was disabled within the meaning of the Act. However, they submitted that tutorials were not a compulsory part of the course, and many students did not, for want of opportunity or inclination, attend them virtually. As such, the comparison the pursuer sought to make was not a viable basis of loss.

Something is lost

In his decision, Sheriff Komorowski said of the disadvantage to the pursuer: “In my view, the appropriate comparison is between the pursuer with her disability and without. Functionally, the same question is answered if one compares the pursuer with a hypothetical non-disabled student in otherwise identical circumstances. The student to whom the pursuer is to be compared is the student who, like the pursuer, was keen to observe the online tutorials. A student who had no desire to observe the tutorials was not in the same position as the pursuer.”

He continued: “On the approach for counsel for the defenders, an employer might argue that its policy on workplace absence did not put those with disabilities at a substantial disadvantage because those with, for example, care commitments or family emergencies would also be at a disadvantage, but such an argument is plainly unsound.”

Noting a tutor’s evidence on the differences between live and empty room tutorials, the sheriff added: “The plain implication from what she says is that something is lost in the empty room tutorial format compared to the live tutorial experience which uses student engagement and interaction to develop skills. This also fits with what one would expect from everyday experience of lectures, presentations, talks, radio programmes, podcasts and the like.”

He went on to say: “There is simply a different dynamic with a presenter where they are subject to some stimulus from an audience or interlocutor, even where that stimulus is limited. That tutors during the live tutorials allow students the facility of commenting is done for a reason; it is not an idle exercise.”

Finding that but for the issues the pursuer would have completed her course, Sheriff Komorowski said of damages: “The pursuer should be entitled to recover compensation not simply for the affront, indignation and inconvenience immediately following from the failure to take reasonable adjustments but also the lack of a congenial opportunity to pursue a degree in her field of interest, and of pursuing her chances, albeit limited, of achieving her ambition. Whether the pursuer’s hopes are ultimately dashed or instead just set back and frustrated for several years, the emotional harm appears substantial.”

He concluded: “All I think I can say is that the pursuer’s prospects had her studies not been brought to an end over the concern over tutorial recordings would have been substantially limited but not de minimis and that those modest prospects have been materially diminished. Taking a very broad axe, the sum of £5,000 does not appear to overvalue or undervalue that damage.”

The sheriff therefore awarded the pursuer £25,700 for injury to feelings and a further £5,000 for the diminution of her employment prospects.