Employment Law Cases

Government Legal Service v Brookes

Requiring a job applicant with Asperger’s syndrome to complete an online multiple-choice psychometric test was indirectly discriminatory.

Ms Brookes applied for a training contract with Government Legal Services (GLS). She has Asperger’s syndrome. The first stage of the GLS recruitment process involves a Situational Judgement Test (SJT) – a multiple choice test. As in many organisations, such tests are popular as they’re considered to be 100% objective and marking of them can be automated.

When Ms Brookes explained to GLS the disadvantage that she faced because of her disability, and asked if she could provide short written answers to questions instead, GLS refused. She was told that an alternative testing format was not available, albeit GLS did allow more time to take tests and would guarantee interviews for those with disabilities who passed all the tests. She took the online test and failed, scoring just two points less than the pass mark.

he brought claims of indirect disability discrimination, failure to make reasonable adjustments and disability-related discrimination. A tribunal upheld all her claims and recommended that the GLS should say sorry (in writing) and review its procedures in relation to people with a disability. GLS appealed - unsuccessfully.

On appeal, the principal issue was whether Ms Brookes could show an individual disadvantage to her as opposed simply to a group disadvantage (the latter point not being contested by GLS on appeal). The EAT could find nothing wrong with the way in which the tribunal had approached this issue: ‘[it] was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it. The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple-choice format of the SJT’.

As to the reasonable adjustments issue, whilst using the SJT had a legitimate aim – to test the fundamental competency required of trainees - the means of achieving that was not proportionate. Given the scale and duration of the recruitment process and the resources of the GLS, both the tribunal and EAT agreed it would have been possible for a small number of people to have been marked manually on narrative-format answers (so the test did not have to be scrapped or fundamentally modified) without undue delay or expense.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0302_16_2803.html

Comment

It is important to note that this decision does not mean you have to lower recruitment standards for disabled applicants or that you have to water down tests so they no longer act as a proper filter. However, if an applicant has a disability and asks for an adjustment which still tests them and is reasonable (taking into account your size and administrative resource) then you should consider making it.

In this case, the Government Legal Services really had no argument on resources and it would be hard to see that even a small employer could not have made this small change to the process. Perhaps GLS were so focussed on process and procedure, as a government organisation, that they lost sight of their obligations under the Equality Act 2010?

Having taken on the GLS and won twice, surely that is sufficient indication that Ms Brooks should be given a training contract as she clearly knows more than GLS’s advisers.