What was the case about?
In The Government Legal Service v Brookes UKEAT/0302/16 the employment appeal tribunal considered whether a job applicant with Asperger’s syndrome suffered disability discrimination by virtue of having to undergo a multiple choice test.
What does the Equality Act 2010 say about discrimination?
Indirect discrimination is defined in section 19 of the Equality Act 2010.
Indirect discrimination can broadly be described as a provision, criterion or practice which is not intended to treat anyone less favourably, but which actually has the effect of disadvantaging a group of people with a particular protected characteristic when compared with others who do not. The relevant protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; and sexual orientation.
Where such a provision, criterion or practice disadvantages an individual with a protected characteristic it will amount to indirect discrimination unless it can be shown that the provision, criterion or practice was a proportionate means of achieving a legitimate aim.
Section 20 of The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to premises or working practices to help disabled job applicants and employees. If the employer fails to comply with this duty to make reasonable adjustments, this amounts to discrimination.
The case facts
- Ms Brookes has Asperger’s syndrome and holds a law degree. She applied to join the Government Legal Service (GLS) as a trainee lawyer, the application process for which was opened in July 2015.
- Prior to July 2015 Ms Brookes found out that during the first stage of the recruitment process she would be required to take a multiple choice test based on situational judgement.
- In June 2015 Ms Brookes contacted the recruitment team at the GLS and asked for adjustments to be made on the grounds of, including other things, her Asperger’s syndrome. In particular, she asked if she could provide short narrative answers instead.
- The GLS indicated that there was no other format available for the test. They stated that time allowances and a guaranteed interview scheme were available, but only for those who passed the first three entry level tests including the situational judgement test.
- In July 2015 despite her expressed concerns Ms Brookes took the situational judgement test. She was told in August 2015 that she had not passed.
- Ms Brookes brought a claim of discrimination to the employment tribunal against the GLS. She claimed that the GLS had applied a provision, criterion or practice placing her at a particular disadvantage which could not be justified.
- Ms Brookes also claimed that the GLS had failed to make reasonable adjustments to the test and that she had suffered discrimination because of something arising as a consequence of her disability.
- The GLS conceded that Ms Brookes had a disability and that they had knowledge of it.
- Medical evidence was provided which, although not conclusive, supported the view that Ms Brookes was put at a disadvantage by being made to sit a multiple choice test.
The employment tribunal decision
The employment tribunal found in favour of Ms Brookes.
The tribunal found that indirect discrimination had taken place. They found that although the GLS was pursuing a legitimate aim by testing the competency of applicants to make decisions, the means by which they had done this was not proportionate. They also found that if the GLS had allowed the applicant to supply short written answers to the test instead of multiple choice, this would have been a reasonable adjustment which could have been made in the circumstances.
The tribunal ordered the GLS to pay Ms Brookes £860 in compensation and to provide her with an apology.
The tribunal also made a recommendation for the GLS to review its procedures for recruiting disabled candidates, with a view to providing greater flexibility for applicants in regards to psychometric testing.
The GLS appealed this decision.
The employment appeal tribunal decision
The employment appeal tribunal dismissed the appeal. They could not fault the reasoning of the employment tribunal in drawing their conclusion.
The tribunal took into account that similar adjustments had been made for Ms Brookes while she was at university, and that there was no explanation other than the method of testing put forward why an otherwise clearly competent individual had not passed the test.
Case comment
This case is a reminder to all employers that they must carefully consider their methods of testing applicants and must ensure they are making reasonable adjustments during the recruitment process for disabled applicants when they are notified by the applicant that they may be at a disadvantage as a result of their disability. Failure to do so could mean that the employer is in breach of the Equality Act 2010.
The employer may want to think about asking the disabled applicant themselves which particular adjustments they think would help.
The decision in this case should be of particular interest to any employer using psychometric testing as a means to recruit applicants. It may be necessary for an employer to allow extra time or adjust the method of testing for a disabled applicant who states that the method of this test would put them at a particular disadvantage due to their disability.
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Note: This article originally appeared on the Moray Employment Law website – first published in June 2017.
