15 June 2017

Disability discrimination – reasonable adjustments

Is it disability discrimination to make a job applicant with Asperger's syndrome sit a situational judgment test (multiple choice test) as part of the recruitment process?

Yes, says the EAT in the Government Legal Service v Brookes.

Facts:  Ms Brookes has Asperger's syndrome and applied to join the Government Legal Service ('GLS') as a trainee lawyer. GLS requires all applicants to sit a psychometric test as part of the first stage in its highly competitive recruitment process. Candidates are required to respond to an online 'situational judgment test' (SJT) which uses multiple-choice questions to test their ability to make effective decisions.

Ms Brookes contacted GLS prior to the test to ask whether an adjustment could be made to the process to allow her to provide short written answers to the questions. Asperger's causes difficulties in imaginative and counter-factual reasoning in hypothetical scenarios. She was told that an adjustment was not possible although she would be given extra time for later tests should she get that far. Ms Brookes completed the test in its multiple choice format but did not score enough to allow her to proceed to the next stage of the recruitment process.

Ms Brookes brought Tribunal claims for disability discrimination including indirect disability discrimination; discrimination because of something arising in consequence of her disability; and failure to make reasonable adjustments. As part of the Tribunal proceedings Ms Brookes produced medical evidence to show how the multiple choice format put her at a disadvantage and demonstrated the potential effect of adjustments (such as replacing multiple choice with questions requiring a short written answer); similar changes had been made for her as part of the law course she was undertaking.

The Tribunal upheld all three disability discrimination claims and the EAT dismissed GLS's appeal. The Tribunal found that GLS had indirectly discriminated against Ms Brookes, 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. The Tribunal found that due to her Asperger's, Ms Brookes was unlawfully disadvantaged by the multiple choice method of testing and GLS should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers. On justification, the Tribunal concluded that while the requirement to pass the online SJT served a legitimate aim - testing a fundamental competency required of trainees (the ability to make effective decisions) - the means of achieving that aim were not proportionate. Although allowing written answers would have created logistical problems for GLS (extra expense; subjective assessment rather than computer marking) these did not outweigh the obligations owed to Ms Brookes.  In addition GLS had not produced evidence which showed why the multiple choice test was necessary.

Implications for employers:

- When a job applicant is clearly identified as disabled, recruiters need to be flexible in their assessment methods.

- An adjustment may need to be more than just extra time to complete an assessment. In some cases, the format of the assessment may need to be altered.

- Indirect disability discrimination claims are rare, as claims for discrimination arising from disability and failure to comply with the duty to make reasonable adjustments cover similar ground and are arguably easier to win.