Is there a requirement to change the test format applied in the selection of new recruits?
The Employment Appeal Tribunal have confirmed that there was no error in law in a decision by the Employment Tribunal that a job applicant with Asperger’s syndrome had been discriminated against in the recruitment process applied by the Government Legal Service.
This case serves as a reminder to employers of their obligation to make reasonable adjustments for all employees and potential employees, which includes applicants for vacancies.
In accordance with the Equality Act 2010 protection from discrimination applies to all employees and applicants for job vacancies.
Indirect Discrimination is covered by section 19 of the Equality Act which states:
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b)it puts, or would put, persons with whom B shares the characteristic at a disadvantage when compared with persons with whom B does not share it,
(c)it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
The duty to make reasonable adjustments is covered by section 20 of the Equality Act which states:
(2) The duty (to make reasonable adjustments) comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
Ms Terri Brookes was diagnosed with Asperger’s syndrome in 2009 whilst studying for a degree in law at Sussex University. In 2012, she completed her law degree and in 2015 she applied for a trainee solicitor post with the Government Legal Service (GLS) which is the organisation that provides legal services to the government and various government agencies.
When Ms Brookes applied, she requested reasonable adjustments on the grounds of, among other things, her Asperger’s syndrome.
The GLS informed Ms Brookes that whilst an alternative test format was not available they made adjustments by giving time allowances and a guaranteed interview scheme for those who passed the 3 required tests.
One of the tests Ms Brookes was required to sit was a multiple choice Situational Judgement Test (known as SJT). This was an online test with no time limit. Before taking the test, Ms Brookes expressed her concern at the format and her ability to take part due to her disability, but despite this she took the test and did not pass, she scored 12 when the pass mark was set at 14.
The SJT test is multiple choice and there are objectively right or wrong answers to the questions which are marked by a computer. Ms Brookes argued that because of her Asperger’s she was disadvantaged by the multiple-choice test and a reasonable adjustment would have been for the GLS to allow her to answer in short narrative written answers.
The GLS argued that there was no evidence to justify the adjustment or that the multiple-choice method put Ms Brookes or others with Autistic Spectrum Conditions at a disadvantage. They also argued the defence that the method of testing was justified as a proportionate means of achieving a legitimate aim of recruiting the best candidates.
The East London Employment Tribunal decided that the GLS had indirectly discriminated against Ms Brookes by failing to make reasonable adjustments to their recruitment process and she had been treated unfavourably because of something arising in consequence of her disability.
The Employment Tribunal awarded £860 compensation to Ms Brookes and ordered that the GLS issue a written apology. The Employment Tribunal also ordered GLS to review their recruitment procedures and flexibility for testing those with disabilities.
The GLS appealed against the decision.
The Employment Appeal Tribunal rejected the GLS appeal and found that the Employment Tribunal had made a thorough and reasoned analysis of the situation in reaching their conclusions.
They also stated that the ‘Tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it. The Tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple-choice format of the SJT.’
The ‘Provision, Criterion or Practice (PCP)’ being the requirement to undertake the SJT test was substantially more difficult for Ms Brookes to pass as a result of her Asperger’s and adjustments should have been made by the GLS.
Points to note
As stated above this case serves as a reminder to employers that they have obligations in respect of potential employees and applicants for employment from the very earliest stage of the application and recruitment process.
In this case, the issue could have been simply resolved by allowing Ms Brookes to take the test and be assessed in a different format.
Clearly the GLS had a system in place for reasonable adjustments, but it would seem it was a ‘one size fits all’ approach to adjustments which clearly did not take into consideration individual conditions.
The outcome illustrates the importance of making decisions and judging adjustments and processes depending on individual circumstances rather than as a broad-brush approach.
Action to take
- If you are recruiting and you have tests or assessments then consider how these may impact those with disabilities;
- Consider how you would provide information and application forms, for example, if you had a candidate with a disability;
- Seek advice if you are unsure or you are presented with an unusual situation.
Employment Appeal Tribunal – The Government Legal Service v Brooks
You can read the full judgement here
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