Alternative Text Posted by Seán McHugh

Do you employ staff? How thorough are you when it comes to adjustments for disabled job applicants?

The EAT in the case of Government Legal Services –and- Ms. Brookes EAT/0302/16/RN has held that a psychometric test was discriminatory.

The claim was brought by a budding lawyer, Ms. Brookes, who suffers from Asperger’s syndrome, and who applied for the post of trainee solicitor at the Government Legal Service (“GLS”).
The GLS receives thousands of applications for a small number of trainee solicitor posts each year, and its recruitment process starts with an online “situational judgment test” (“SJT”), which comprises of multiple-choice questions to test candidates’ ability to make effective decisions.

Ms. Brookes asked the GLS if she could submit her answers in a short written form because of her condition. Ms. Brookes was informed that an alternative test format was not available.

Ms. Brookes completed the SJT in its multiple-choice format, but she scored 12 out of 22. The pass mark to proceed to stage 2 of the GLS recruitment process was 14-marks.

Her employment tribunal case included a claim for indirect disability discrimination. The employment tribunal accepted that the multiple-choice format had placed her at a particular disadvantage because of her condition. Her condition meant that she: “lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios”.

In relation to her claim for indirect disability discrimination: the EAT’s view was:

“The tribunal 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.”

The tribunal accepted that the assessment had the legitimate aim of testing a fundamental competency. However, the tribunal concluded that the means of achieving the aim were not proportionate because an alternative assessment method, suggested by Ms. Brookes, was available.

The GLS appealed against the tribunal decision, with the EAT agreeing with the first-instance tribunal’s finding of indirect disability discrimination.

The EAT held that the test placed Ms. Brookes at a particular disadvantage compared with non-disabled candidates who do not have Asperger’s syndrome.

The EAT accepted that her condition had affected her ability to complete the multiple-choice assessment, and that the GLS should have adapted the test for her. The EAT also agreed with the employment tribunal that the GLS had committed s. 15, discrimination arising from disability, and that it had failed to comply with s. 20, its duty to make reasonable adjustments.

Indirect disability discrimination claims are brought less frequently by claimants given the available claims under s. 15 and s. 20, which are generally viewed as easier to succeed with. The fact that Ms. Brookes succeeded under all three heads of her claim highlights the need for those recruiting to be flexible in their assessment methods for disabled applicants. In some cases, the format of the assessment may need to be altered: something which is very likely to be deemed as a reasonable step to take when presented with such circumstances.

The tribunal made a recommendation that the GLS issue a written apology to her and review its recruitment procedures for disabled job applicants, with a view to introducing greater flexibility in its psychometric testing.

Ms. Brookes was also awarded £860.00 in compensation.

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