The recent case of Government Legal Services (GLS) v Brookes is of particular interest to employers as it is one of the few decisions at Employment Appeal Tribunal (EAT) level where a claim of indirect disability discrimination has succeeded. The case revolves around on-line psychometric testing, an extensively used recruitment selection tool.
Ms Brookes, who was diagnosed with Asperger’s in 2009, applied for a solicitor’s training contract with GLS having successfully completed her university law degree. Competition for GLS contracts is notoriously tough, with several thousand applicants a year applying for just 35 places. The first stage of the GLS’s recruitment process required applicants to complete an on-line "situational judgement test" (SJT). This was a multiple choice psychometric test which was aimed at assessing candidates’ decision making capabilities.
Ahead of her application, Ms Brookes contacted GLS requesting adjustments to be made to the SJT in light of her Asperger’s. She asked to be allowed to submit a short narrative response to the questions raised, rather than having to select from multiple-choice options. GLS refused Ms Brookes’ request, informing her that no alternative test format was possible. However, GLS did inform Ms Brookes that provision could be made for an extension of time to complete the SJT. Ms Brookes went on to take the SJT in multiple choice format, but failed, scoring 12 out of 22. The pass mark for progressing to the next stage of the recruitment process was 14.
Ms Brookes brought employment tribunal claims against GLS for indirect disability discrimination, discrimination arising from a disability and failure to comply with the duty to make reasonable adjustments. (Interestingly, Ms Brookes represented herself successfully throughout!)
Employment tribunal decision
The employment tribunal (ET) found in favour of Ms Brookes on all her discrimination claims. In respect of her claim of indirect discrimination, the ET found that, by requiring all applicants to pass an on-line psychometric test in multiple choice format as part of its initial screening process, GLS had applied a ‘provision, criterion or practice’ (PCP) which put Ms Brookes at a particular disadvantage due to her condition. Ms Brookes provided the ET with extensive medical evidence that her Asperger’s meant she "lacked social imagination and so had difficulties in imaginative and counter-factual reasoning in hypothetical scenarios", an essential requirement for success in the multiple-choice SJT.
Whilst the ET accepted that GLS’s PCP had a legitimate aim – testing for core competencies in an efficient manner – it was not ‘a proportionate mean of achieving that aim’, as other less discriminatory alternative methods of testing for such competencies were available. GLS’s actions were also found to amount to ‘discrimination arising in consequence of Ms Brookes’ disability’.
Further, in refusing to allow Ms Brookes to provide answers in an alternative format to multiple-choice selection the ET found GLS to have failed in its duty to make ‘reasonable adjustments’ in respect of her disability.
As well as making an award of compensation to Ms Brookes, the ET recommended that GLS issue her with a formal written apology and review its recruitment procedures in relation to disabled job applicants. GLS appealed.
In upholding the ET’s decision, the EAT found the ET’s reasoning to have been "impeccable and beyond reproach" - praise indeed! The EAT emphasised that in Ms Brookes the ET had been presented with a potentially capable candidate who had come very close to the reaching the required pass mark for the SJT (allowing her to progress further in the GLS recruitment process). In the circumstances, the ET had been entitled to conclude that the most likely explanation for Ms Brookes’ minimal short-fall was her Asperger’s, and the additional difficulties she faced as result of taking the SJT in multiple-choice format.
The EAT also agreed with the ET assessment that the adjustments suggested by Ms Brookes to the SJT had been reasonable, and GLS’s unwillingness to implement them amounted to a failure to comply with the duty to make reasonable adjustments.
The case shows the dangers of rigid thinking by employers when it comes to recruitment, and the importance of considering reasonable adjustments for disabled applicants. Such adjustments don’t mean that candidates can’t be assessed for legitimate core competencies. However, a willingness to be flexible and to consider potential alternative methods for such assessment are essential to avoiding successful claims of disability discrimination along the way.
How can EEF Help?
We will be looking in more detail at ‘the duty to make reasonable adjustments’ in our forthcoming national seminar Employee ill health: active management for effective outcomes. The seminar also covers the impact and management of "hidden disabilities", such as Asperger’s, in the workplace. For further information, or to book a place, see here.
EEF members can also find additional information and support on HR resources section of the EEF website.