In the case of The Government Legal Service v Brookes, the Employment Appeal Tribunal (EAT) upheld a decision of the Employment Tribunal (ET) that a claimant, who had Asperger’s syndrome, had suffered disability discrimination when she was required to take a multiple-choice test as part of the prospective employer’s recruitment process.
The issues in the case
Ms Brookes applied for a legal position with the respondent, GLS. Ms Brookes had Asperger’s syndrome. As part of the first stage of GLS’s recruitment process, Ms Brookes was required to take, and pass, an online ‘situational judgment test’ in the form of multiple choice questions, designed to test whether candidates were able to make decisions effectively. When Ms Brookes found out that she had to take the test, she asked GLS if they could make an adjustment to the test on account of her Asperger’s; Ms Brookes asked if, instead of the multiple-choice format, she could give short written answers to the questions. GLS told her that an alternative format was not available. Ms Brookes therefore took the test as it was, and scored two marks less than the pass mark. Her application was not taken any further. She brought claims against GLS for indirect discrimination, discrimination arising from disability, and a failure to make reasonable adjustments. It was accepted by GLS that Ms Brookes had a disability and that they had knowledge of it at the time, but they argued they had not discriminated against her.
Indirect disability discrimination occurs when:
- person A applies to person B a ‘provision, criterion or practice’ (PCP);
- A applies that PCP to persons who do not have B's disability;
- The PCP puts those with B's disability at a particular disadvantage when compared to other persons;
- The PCP puts B at that disadvantage; and
- A cannot objectively justify the PCP
Discrimination arising from disability occurs where A treats B unfavourably because of something arising in consequence of B's disability, and A cannot objectively justify its treatment of B.
The duty to make reasonable adjustments arises where a disabled person is placed at a substantial disadvantage by an employer's PCP.
It was agreed that the PCP in Ms Brooke’s claim was a requirement for all job applicants to take and pass the test.
The Tribunal’s findings
The ET upheld Ms Brookes’ claims under all three heads. The ET found that the PCP put people such as Ms Brookes at a disadvantaged compared to people who did not have Asperger’s, and found the PCP put Ms Brookes in particular at a such a disadvantage. The ET found that whilst GLS had a legitimate aim in requiring applicants to sit and pass the test, in order to assess the skills required for the post, GLS did not go about meeting that aim in a proportionate way, so could not objectively justify it. Ms Brookes’ reasonable adjustments claim was successful for similar reasons, as was her claim for discrimination arising from disability. The tribunal awarded Ms Brookes compensation of £860, and made a recommendation that GLS issue a written apology to Ms Brookes and review its recruitment procedures in relation to disabled applicants.
GLS appealed to the EAT on two grounds:
- The ET’s finding that Ms Brookes was disadvantaged by the requirement to take the test was perverse; and
- The ET had made the wrong finding about objective justification.
The EAT dismissed GLS’s appeal on both grounds.
On the first ground, the EAT noted that the ET had heard medical evidence from two psychiatrists with expertise in Asperger’s – one for the claimant and one for the respondent. Whilst the ET had noted that the medical evidence was ‘inconclusive’, the EAT’s view was that the ET was entitled to reach the findings it did on the basis of all the evidence it heard, including the medical evidence. The ET was entitled to find that Ms Brookes failed due to the format of the test, as no alternative explanation had been put forward. The EAT noted the ET’s finding that Ms Brookes ‘lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios’, and that the ET had also relied on evidence that Ms Brookes had been found to require adjustments in a university course she was undertaking and that her university accepted that where applicable multiple choice should be replaced with questions requiring a written answer.
On the second ground of appeal, the EAT noted the ET accepted that it ‘would not be ideal to have to run two such different methods of assessment alongside or in parallel, and inevitably there would be difficulties in comparing candidates’ responses / answers, and potentially a degree of subjectivity and / or lack of objectivity would be present’. However, the ET had weighed that against the factors on Ms Brookes’ side. Whilst it might have been difficult, administratively and potentially on grounds of cost, for adjustments to have been made to the test for Ms Brookes, that did not outweigh the disadvantage suffered by her.
What key practical points should employers take from this case?
The case is a reminder that the discrimination protections apply to job applicants, not just to individuals who have been hired and are actually employees. Employers are reminded to ask job applicants about any adjustments that they require in the recruitment process, and to take time to carefully consider any request for adjustments, and how any disadvantage might be removed. Of course, employers are still entitled to seek the best qualified candidate for the job, and there is nothing wrong with employers assessing candidates during a recruitment process against the key competencies for the particular role, which may include formal tests like in Ms Brooke’s case. However, as the aim of the indirect discrimination provisions in the Equality Act is to create a level playing field for individuals who have a protected characteristic, such as a disability, employers need to mindful that the rules and practices they adopt do not indirectly disadvantage such individuals. Unfortunately, it is not always easy for an employer to balance that against its commercial objectives.