The Government Legal Service (GLS) was recruiting lawyers in what the EAT called “a fiendishly competitive recruitment process”. The process included a multiple choice Situational Judgement Test (SJT). Ms. Brookes was required to sit the SJT, consisting of right or wrong answers to multiple choice questions, meaning marking can be done by a computer without human intervention or judgment. She asked the GLS to make adjustments on the ground of her Asperger’s Syndrome. She was informed that an alternative test format was not available (although time allowances were). She completed the SJT and failed narrowly.
She claimed disability discrimination due to her Asperger’s, as she was unlawfully disadvantaged by the multiple choice method of testing, and that the Respondent should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers.
An employment tribunal found that the GLS:
- had indirectly discriminated against the Claimant
- had failed to comply with the duty to make reasonable adjustments and
- had treated her unfavourably because of something arising in consequence of her disability
Having heard expert medical evidence, it concluded that the PCP generally placed people who had Aspergers syndrome, at a particular disadvantage compared with those who did not have it. It found that she was put at that disadvantage, especially since her Asperger’s causes difficulties in imaginative reasoning in hypothetical scenarios. The Tribunal ordered the Respondent to pay compensation and made a recommendation that they issue a written apology to the Claimant, and review its procedures in relation to disabled people applying for employment.
The EAT ruled that the employment tribunal was entitled to conclude the provision, criterion or practice (PCP) placed Brookes at a particular disadvantage, because she has Asperger’s Syndrome. The EAT also agreed that the requirement to take the SJT in its unaltered form, amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim, for the reasons found in respect of indirect discrimination. Throughout the case, Ms Brookes had not asserted that the entire process should be changed dramatically and did not dispute what the SJT sought to measure – the ability of candidates’ decision-making powers. She merely alleged that small changes could be made to ensure a fairer process for all applicants.
Peter Stanway, our BackupHR™ legal expert comments:
This case is important because similar tests are widespread methods of recruitment across all sectors consequently certain candidates may be disadvantaged – such as those with dyslexia or autism (aspergers being on the autistic spectrum). It highlights the importance of considering reasonable adjustments for disabled candidates at all points in the recruitment process including testing.
- Employers should ensure that on application, candidates are asked whether they require any reasonable adjustments. If they indicate that they do, then you should enquire further as to what would help them.
- If you use any form of testing method, then you should consider whether an alternative should be deployed in the event that the candidate is unable to complete such tests, exactly as you would normally require. This does not necessarily make that candidate unsuitable for that role.
- If you are unable to make reasonable adjustments, your reasons must be justifiable e.g. disproportionately too costly and properly documented so that your decisions can stand up to scrutiny, if challenged.
- Ensure disabled candidates are not disadvantaged to the extent that they are unsuccessful in their application, purely because their disability did not allow them to perform as well as a non disabled person.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
