Disability discrimination and asperger's syndrome
09 May 2017
A requirement to sit a multiple choice test as part of the recruitment process amounts to a failure to make reasonable adjustments and discriminatory treatment.
In the case Government Legal Services v Brookes, Ms Brookes has Asperger’s Syndrome. She applied for a legal training contract at the Government Legal Services (GLS), the first stage of which is a multiple-choice Situational Judgment test (SJT). She informed GLS before the SJT that she would require reasonable adjustments and requested to answer the test with short form answers, as her Asperger's meant that she "lacked social imagination and would have difficulty in imaginative and counter-factual reasoning in hypothetical scenarios". GLS refused, and B took the standard multiple-choice test, scoring 12 out of a possible 22. (The pass mark was 14).
B brought a claim to the Employment Tribunal (ET) of indirect discrimination, discrimination arising from disability, and failure to make reasonable adjustments. The ET decided that there was a Provision, Criteria or Practice (PCP) in the requirement to sit and pass an online SJT, and that this placed B at a substantial disadvantage compared with a person who is not disabled. The ET also found that, although the PCP had a legitimate aim (testing a competency required of lawyers), the means of achieving it were not proportionate, as GLS could have accepted B's proposal to answer the questions in a different way. Her complaint of indirect discrimination succeeded, as did her other claims. GLS appealed to the EAT.
The EAT dismissed the appeal, commenting that the ET's reasoning was "impeccable and beyond reproach". The decision - that GLS should pay compensation and a recommendation that it write a letter of apology and review its procedures for those with a disability to allow greater flexibility in psychometric testing - was upheld.
With thanks to Pinsent Masons employment law briefing for providing this update.