Case update (3): Disability discrimination – reasonable adjustments

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Summary:  Is it disability discrimination to make a job applicant with Asperger’s syndrome sit a situational judgment test (multiple choice test) as part of the recruitment process?

Yes, says the EAT in the Government Legal Service v Brookes, available here.

Facts:  Ms Brookes has Asperger’s syndrome and applied to join the Government Legal Service (‘GLS’) as a trainee lawyer. GLS requires all applicants to sit a psychometric test as part of the first stage in its highly competitive recruitment process. Candidates are required to respond to an online ‘situational judgment test’ (SJT) which uses multiple-choice questions to test their ability to make effective decisions.

Ms Brookes contacted GLS prior to the test to ask whether an adjustment could be made to the process to allow her to provide short written answers to the questions. Asperger’s causes difficulties in imaginative and counter-factual reasoning in hypothetical scenarios. She was told that an adjustment was not possible although she would be given extra time for later tests should she get that far. Ms Brookes completed the test in its multiple choice format but did not score enough to allow her to proceed to the next stage of the recruitment process.

Ms Brookes brought Tribunal claims for disability discrimination including indirect disability discrimination; discrimination because of something arising in consequence of her disability; and failure to make reasonable adjustments.  As part of the Tribunal proceedings Ms Brookes produced medical evidence to show how the multiple choice format put her at a disadvantage and demonstrated the potential effect of adjustments (such as replacing multiple choice with questions requiring a short written answer); similar changes had been made for her as part of the law course she was undertaking.

The Tribunal upheld all three disability discrimination claims and the EAT dismissed GLS’s appeal. The Tribunal found that GLS had indirectly discriminated against Ms Brookes, had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability. The Tribunal found that due to her Asperger’s, Ms Brookes was unlawfully disadvantaged by the multiple choice method of testing and GLS should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers. On justification, the Tribunal concluded that while the requirement to pass the online SJT served a legitimate aim – testing a fundamental competency required of trainees (the ability to make effective decisions) – the means of achieving that aim were not proportionate. Although allowing written answers would have created logistical problems for GLS (extra expense; subjective assessment rather than computer marking) these did not outweigh the obligations owed to Ms Brookes.  In addition GLS had not produced evidence which showed why the multiple choice test was necessary.

Implications: If a disabled candidate will be put at a disadvantage by the format of a recruitment test then the employer may well have a legal obligation to make an adjustment not only by allowing more time but by providing an alternative test or method of responding.  If you are faced with such scenario, then you would be best advised to consider whether to make adjustment/s with an open mind and, if practical to make, then do so.  Refusal to make adjustments as a matter of unthinking principle will almost always be fatal to your defence of any subsequent discrimination claim.

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