The Employment Appeal Tribunal (EAT) has upheld claims for disability discrimination and failure to make reasonable adjustments, when a disabled candidate failed a selection test.

Government Legal Service (GLS) v Brookes, EAT

Facts

Applicants to join the GLS as trainee solicitors are required to sit and pass an online ‘situational judgement test’ (SJT) at the first stage of recruitment. The test consists of multiple choice questions to test the ability of candidates to make effective decisions.

Ms Brookes requested adjustments to be made to the SJT to accommodate difficulties associated with her Asperger syndrome in responding to a multiple choice test. She asked if she could submit answers in short narrative form instead, but her request was refused. The GLS said that additional time allowances could be made and that a guaranteed interview scheme applied to those who passed the initial tests.

Ms Brookes failed the test and brought various claims for disability discrimination against the GLS: indirect discrimination, discrimination arising in consequence of disability and failure to make reasonable adjustments. The claims were all upheld by an employment tribunal.

The GLS was ordered to pay £860 in compensation and to provide an apology. The tribunal also made a recommendation that GLS review its procedures for recruiting disabled candidates and provide greater flexibility in its psychometric testing methods.

EAT decision

The EAT upheld the tribunal’s decision and agreed that individuals with Asperger syndrome, such as the claimant in this case, were placed at a disadvantage in meeting the requirement to pass the SJT. The adjustments requested by the candidate were reasonable and should have been adopted by the GLS. The decision-making abilities of candidates with Asperger’s could have been properly measured by allowing them to answer the questions in narrative format.

Consequences

Employers who use similar psychometric testing in their recruitment process should ensure that some flexibility is permitted in the form of reasonable adjustments for candidates with a disability. Even if certain adjustments are permitted as standard for those with disabilities, employers should always consider granting requests for specific adjustments relevant to the disability in question. 

The content of this article is for general information only. For further information on disability discrimination in the workplace, please contact Liz Stevens or a member of Birketts’ Employment team. Law covered as at June 2017.