The EAT has considered whether a job applicant with Asperger's syndrome was indirectly discriminated against for being required to sit a multiple choice test during the recruitment process.

We review the implications of the EAT's decision for employers.

The Government Legal Service v Brookes

The Government Legal Service (GLS) recruits around 35 trainee solicitors each year and as part of its recruitment process, applicants are required to sit a multiple choice Situational Judgement Test (SJT). The purpose of the SJT is to assess an applicant's ability to make effective decisions and the pass mark for the test is 14 out of 22.

Miss Brookes, who has Asperger's syndrome, applied for the role of trainee solicitor at GLS in July 2015. She had contacted the GLS a month before the SJT and asked if an adjustment could be made to the format of the test so that she could submit her answers in a short narrative form due to her condition. The GLS informed Miss Brookes that an alternative test format was not available however allowances could be made as well as there being a guaranteed interview for applicants who pass the SJT. Miss Brookes scored 12 in the SJT and consequently failed the test, such that her application went no further.

Employment Tribunal decision

Miss Brookes brought claims in the Employment Tribunal for:

  • disability discrimination under s.19 of the Equality Act 2010 (EA 2010)
  • discrimination for failing to make a reasonable adjustment under s.20 EA 2010 and
  • discrimination for something arising in consequence of her disability under s.15 EA 2010.

The Tribunal upheld all three of Miss Brookes' claims. It found that Miss Brookes had been indirectly discriminated against due to the fact that the GLS had applied a provision, criterion or practice (PCP) which put her at a particular disadvantage because of her Asperger's syndrome. Even though the PCP had the legitimate aim of testing applicants' ability to make effective decisions, the way in which it had achieved this aim was not proportionate. Medical evidence heard indicated that people with Asperger's were more likely to struggle with the SJT because of their lack of social imagination and counter-factual reasoning in hypothetical scenarios. The GLS had therefore failed to comply with the duty of making reasonable adjustments and had treated her less favourably because of something arising in consequence of her disability.

The Tribunal made a recommendation for the GLS to review policies and procedures and to ensure that greater flexibility is applied to the test for disabled individuals applying for employment. The Tribunal also ordered GLS to pay Miss Brookes £860 in compensation as well as provide a written apology. The GLS appealed on the basis that the Tribunal had been wrong to come to the conclusion that Miss Brookes failed the SJT because of her Asperger's.

The Employment Appeal Tribunal (EAT) decision

The EAT upheld the Tribunal's decision and dismissed GLS's appeal.

The GLS medical experts at the hearing agreed that Miss Brookes fitted the profile of a person who had Asperger's and that she would have been at more of a disadvantage as compared to applicants who do not have Asperger's. Further the format of the SJT was not appropriate for an individual with Asperger's. As there was no clear explanation as to why Miss Brookes failed the SJT, the EAT found that the Tribunal was right to conclude that on the balance of probabilities the reason was down to the format of the SJT.

In addition, the Tribunal was entitled to reject the notion that the SJT was the only way to assess an applicant's capability or competency in making decisions. The EAT upheld the Tribunal's decision that the GLS had indirectly discriminated against Miss Brookes and had failed to comply with its duty to make reasonable adjustments. In turn, this put Miss Brookes in an unfavourable position because of something arising in consequence of her disability.

What does this mean for employers?

Employers should review their recruitment processes, in particular the tests they require applicants to sit and pass, in light of this decision. The Tribunal's recommendation to the GLS that it review its psychometric testing procedures for applicants will be of interest to employers as it is generally seen that the purpose of online multiple choice tests is to create a level playing field for applicants. However, it is now apparent that such tests may not be as fair as they seem.

Interestingly, there is a line of argument which states that online multiple choice tests are restrictive because they do not allow an applicant to show their thought processes in reaching their answers. The human element of the recruitment process is therefore ultimately removed and it is left to a computer to determine whether an applicant has met the criteria or not. However, conversely, tests such as the SJT require applicants to think and execute their answers under pressure.

Employers should ensure that they can offer disabled applicants reasonable adjustments to psychometric tests and/or provide alternative means of assessing applicants if they are to avoid successful discrimination claims.