In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called “a fiendishly competitive recruitment process”. Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger’s – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger’s.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

The ET upheld the Claimant’s complaints of disability discrimination and stated that the adjustments she had requested were reasonable.  It concluded that a ‘provision, criterion or practice’ (PCP) (the requirement that all applicants take and pass the SJT test) would place a group of people such as the Claimant at a particular disadvantage compared to those who did not have Asperger Syndrome. The GLS had therefore placed Ms Brookes in particular, at such a disadvantage.

It is worth noting that during the Tribunal hearing, medical evidence was provided to support the argument that multiple choice tests generally placed those with Asperger’s at a particular disadvantage compared to people who do not have Asperger’s, as people with Asperger’s can often ‘lack social imagination’.

The ET further concluded that the indirect discrimination was not justified, as whilst in setting the test the GLS had been pursuing a legitimate aim of testing the competency of applicants’ decision making, the means of achieving their aim were not proportionate – the reasonable adjustment of allowing written answers to be given, should have been allowed.

The GLS subsequently submitted an appeal to the EAT, arguing that the medical evidence provided did not support the conclusion that the Claimant was put at a particular disadvantage, and that the failure to make reasonable adjustments could be justified.

The EAT dismissed the appeal – the Claimant’s psychiatrist had previously made recommendations in relation to her University courses, that a multiple-choice test would not be appropriate for her and the EAT stated that the reasoning given by the ET could not be faulted.   In addition, although the EAT recognised that the GLS did need to test the ability of the candidates to make effective decisions, it ruled that the methods used in this respect were disproportionate to the outcome they were trying to achieve – there were other ways that such abilities could be measured.

What does this Judgment mean for Employers?

As a matter of good practice employers should always ensure that they consider and make reasonable adjustments for disabled candidates. Employers should also ‘go one better’ than this and ask within job application forms whether potential candidates require any such adjustments and if so, what is needed.

Please contact Katharine Kelly on 0151 239 1079 or katharinekelly@canter-law.co.uk for advice on what may/may not be deemed a reasonable adjustment.