Government Legal Service v Brookes

Multiple Choice Assessment taken by Applicant with Aspergers Subjected Her to Indirect Disability Discrimination

In the recent ruling, Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of an Employment Tribunal that requiring a job applicant with Aspergers to take a multiple choice test as part of the recruitment process amounted to indirect discrimination.

The Facts

Ms Brookes applied for a position with the Government Legal Service (GLS) whose jobs are highly sought after and whose recruitment is notoriously competitive. Applicants are required to complete and pass a multiple choice situational judgement test in order to progress to interview. Prior to sitting the test Ms Brookes contacted the GLS and requested that she provide her answers in the form of a short narrative rather than multiple choice, as due to her Aspergers the nature of the multiple choice test put her at a disadvantage. The GLS did not agree to the request but said that extra time might be allowed for tests at a later stage providing the entry level tests had been passed. Ms Brookes did not pass the assessment scoring 2 points under the required pass mark and was not successful in her application.

Ms Brookes brought claims to the employment tribunal for disability discrimination. She claimed that the multiple choice test put her at a particular disadvantage compared to other candidates who did not have Aspergers, that there was no justification for this and that GLS had not made any reasonable adjustments to the test to enable her to overcome her disadvantage.

The Law on Indirect Discrimination

Under the Equality Act 2010 indirect discrimination occurs when a provision, criterion or practice is applied to everyone in the same way but the effect of it is to particularly disadvantage people who share a protected characteristic; age, disability, gender reassignment, marriage or civil partnership, race, religion or belief, sex or sexual orientation and pregnancy and maternity. It is possible to justify indirect discrimination if the employer can show that it was a ‘proportionate means of achieving a legitimate aim’, which essentially means acting fair and reasonably and showing that alternative options were considered.

Disability as a Protected Characteristic

Under the Equality Act a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-today activities. Employers have a duty to make reasonable adjustments to premises or working practices to help applicants and employees overcome disadvantage resulting from disability, a failure to comply with this duty is a form of discrimination.

The Employment Tribunal Ruling

The employment tribunal upheld Ms Brookes’ complaints of disability discrimination. The tribunal considered the requested adjustments to be reasonable. Medical evidence was provided to support the conclusion that multiple choice tests generally placed those with Aspergers at a particular disadvantage compared to people who do not have Aspergers, as people with Aspergers often lack social imagination. No alternative explanation for Ms Brookes’ failure to pass the test was provided by GLS.

The tribunal concluded that the indirect discrimination was not justified, as whilst in setting the multiple choice test the GLS were pursuing a legitimate aim of testing the competency of applicants’ decision making, the means  of achieving this aim were not proportionate. The GLS could have a made a reasonable adjustment by allowing written answers to be given.

The tribunal ordered that the GLS pay compensation to Ms Brookes in the sum of £860 and made a recommendation that they also provide her with a written apology.

The EAT Appeal

The GLS appealed to the EAT arguing that the medical evidence did not support the conclusion that Ms Brookes was put at a particular disadvantage and that the failure to make reasonable adjustments could be justified. The EAT dismissed the appeal stating that the reasoning of the tribunal could not be faulted and that the methods used by the GLS were disproportionate to the outcome they were trying to achieve. The EAT recognised that the GLS did need to test the ability of candidates to make effective decisions, but the way in which they did this (by carrying out a psychometric test) was not the only way to measure this ability.

How will this Ruling affect Employers?

This case highlights the importance of employers taking care to consider and make reasonable adjustments for disabled candidates. It is advisable for employers to ask on application forms whether the applicant requires any reasonable adjustments and if so to enquire what is required by the applicant. If an adjustment is requested by an applicant which doesn’t alter the effectiveness of the test and is practically doable then it is advisable that an employer considers making this adjustment.

What this ruling and the law does not require is for employers to water down tests for disabled applicants so that the tests cannot accurately filter out those right for the position, or to make recruitment standards lower for disabled people.