In the recent ruling of Government Legal Service v Brookes UKEAT/0302/16, the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal that requiring a job applicant with Asperger’s to sit a multiple choice test at the first stage of its recruitment process, amounted to indirect discrimination.

Facts

Ms Brookes who has Asperger’s syndrome was required to sit an online ‘situational judgement test’ as part of the recruitment process for a training contract at the Government Legal Service (GLS). GLS posed these multiple choice questions as a way of testing candidates’ ability to make effective decisions. 

Ms Brookes informed the GLS before this test that she would require adjustments by providing her answers in a short narrative format. The GLS responded and told her that an alternative test format was unavailable. 

She failed the test and Ms Brookes subsequently brought claims in the Employment Tribunal of indirect discrimination under section 19 of the Equality Act 2010, discrimination because of something arising in consequence of her disability under section 15 and a failure to comply with the duty to make reasonable adjustments as set out in section 20 of the Act. 

The Ruling

The Employment Tribunal upheld Ms Brookes’ complaints and found that the GLS had indirectly discriminated against her and had failed to comply with the duty to make reasonable adjustments. The Tribunal ordered the Respondents to pay compensation to Ms Brookes and to apologise. They also made a recommendation under section 124(2) of the Act that the GLS review its procedures in relation to job applicants with a disability, with a view to providing greater flexibility in the psychometric testing regime. The Respondents appealed to the EAT but the EAT dismissed the appeal and upheld the Tribunals decision stating that the reasoning of the Tribunal could not be faulted. 

This decision highlights the need for employers to review such methods of testing when recruiting job applicants. Employers are reminded to carefully consider adjusting their chosen method of testing in cases where a disabled applicant requests adjustments. Employers are also reminded to ask job applicants about any adjustments that they require throughout the recruitment process.