Employers may need to rethink their recruitment process for those job applicants with a disability after a recent ruling by the Employment Appeal Tribunal (EAT).

In Government Legal Service v Brookes, the EAT upheld the decision of the Employment Tribunal, concluding that a job applicant with Asperger’s syndrome suffered indirect discrimination as a result orequired toired  to undertake a situational judgment test as part of the first stage of its recruitment process.

Facts

All job applicants applying for a legal training contract at the Government Legal Services (GLS) are required to undertake psychometric testing as part of its recruitment practices. In the first round, applicants need to sit a situational judgment test.

Miss Brookes, the job applicant, had Asperger’s syndrome and requested to answer the questions in a short narrative, rather than the required multiple choice. This was rejected by the GLS, who said that there was no alternative test format available. They did, however, allow time allowances. She sat the test and received a mark below the pass rate and did not go through to the next recruitment stage.

She lodged claims for indirect discrimination, discrimination because of something arising as a result of her disability and a failure to fulfil a duty to make reasonable adjustments.

The GLS argued that they were justified in refusing her request. The applicant could not demonstrate that the test format put those with Asperger’s at a disadvantage. They said that even if this was the case, it was a proportionate way of achieving a legitimate aim of recruiting the best candidates by assessing their ability to make effective decisions.

The law

In a nutshell, a disabled worker is entitled not to be treated less favourably because of a disability or receive unfavourable treatment because of something arising out of their disability. Employers must also make reasonable adjustments to the worker’s working practices, policies and procedures if they can. Falling down at any of these hurdles could result in a disability discrimination claim.

Indirect discrimination occurs when a company’s policies, procedures or rules which apply to everyone has the effect that people with a certain protected characteristic (e.g. disability) are put at a disadvantage when compared with those who do not share it.

As an employer you may justify indirect discrimination by showing that this policy or procedure was objectivity justified. This means that there must be a real business need and it is a proportionate means of achieving this aim.

Employment Tribunal’s ruling

The Employment Tribunal found:

• Indirect discrimination had occurred.
• The employer had not fulfilled their duty to make reasonable adjustments.
• The employer had treated her unfavourably because of something arising in consequence of her disability.

The Tribunal decided that the requirement to sit and pass the test did place the applicant at a disadvantage compared with those applicants who did not have Asperger’s. They concluded that there was no other reason given by the GLS as to why she had failed the test.

They agreed with the GLS that testing applicants’ ability to make effective decisions is a legitimate aim as it is an essential competency required to be a trainee lawyer. However it was deemed a disproportionate way to achieve the aim as there were less discriminatory alternatives available.

They ordered compensation and made a recommendation that they provide the applicant with a written apology. They also urged them to review their recruitment procedures for those applicants with a disability.

The GLS appealed to the EAT.

EAT’s decision

The EAT said that the tribunal’s reasoning was “impeccable and beyond reproach” and upheld the Employment Tribunal’s decision.

Comment

Equality law protections do not just extend to your employees, but also job applicants. Employers need to think about their duty to reasonable adjustment when there are applicants with disability. If you have any questions about disability discrimination, contact your Employment Law Adviser who can provide you with bespoke guidance and support.

You can read more about indirect discrimination here.