In Government Legal Service v Brookes, the EAT have issued a warning to recruiters to introduce greater flexibility for disabled applicants in its psychometric testing. The EAT have reinforced the decision of the ET by ruling that the recruitment process of the Government Legal Services (“GLS”) is indirectly discriminatory.
At first instance, the ET heard how the claimant, Ms Brookes, an aspiring solicitor suffering from Asperger’s syndrome, requested an alternative test format from the standard situational judgment test which was to be completed by all applicants. Her request was rejected and consequently she failed to achieve the necessary pass mark to proceed to the next round. The claimant argued that she had been discriminated against because her failure to achieve the pass mark to proceed to the next stage was down to the fact that her request for an alternative test format had been refused. The claimant argued that the GLS were in breach of;
- s15, Equality Act 2010 - discrimination because of something arising in consequence of her disability;
- s19, Equality Act 2010 - applying a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic;
- s20, Equality Act 2010 - a failure to provide reasonable adjustments.
The ET accepted her claim for indirect disability discrimination and agreed that her condition meant that “she lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios” and therefore should have been offered an alternative test (such as submitting her answers in a short narrative form, like she had suggested). The ET accepted that the assessment held the legitimate aim of testing a fundamental competency however considered that the means of achieving that aim was not proportionate as an alternative method was available.
On appeal, the EAT rejected the arguments of the GLS and upheld the decision of the ET stating that it was clear that the claimant had suffered a particular disadvantage in comparison with applicants who did not share her condition. The EAT went on to champion the ET’s decision stating that the ET was right to ask why a capable young woman who had obtained a law degree (with the benefit of reasonable adjustments) and come close to achieving the requisite pass mark, but had not quite managed it. The EAT concluded in finding that the ET were entitled to find that the likely reason for her failure was because reasonable adjustments were not made in consideration of her disability; the test should have been adapted as her condition affected her ability to achieve the pass mark.
The decision of the EAT should be treated as a warning that ought to be heeded by recruiters. To avoid the repercussions suffered by the GLS, recruiters should be flexible in the recruitment processes in order to cater for applicants with a disability and ensure fairness.
Recruiters will have to be more careful about adjustments to the format of recruitment assessments for disabled job applicants, following an Employment Appeal Tribunal (EAT) decision that an applicant with Asperger’s syndrome was unfairly disadvantaged by an online multiple-choice psychometric test.