The Government Legal Service v Brookes UKEAT/0302/16/RN

Why care?

The case concerns three forms of disability discrimination:

  • indirect discrimination (when an employer indirectly discriminates against an individual with a protected characteristic where the employer applies a provision, criterion or practice to all, including the individual, which puts or would put people with that protected characteristic, as well as the individual, at a particular disadvantage compared to others without the protected characteristic, and the PCP cannot be shown to be objectively justified (a proportionate means of achieving a legitimate aim)
  • discrimination arising from disability, where the employer treats the individual unfavourably because of something arising in consequence of the individual’s disability, and cannot show that the treatment is objectively justified
  • the employer’s duty to make reasonable adjustments for disabled job applicants and employees.

In this case, the EAT held that a job applicant with Asperger’s syndrome was placed at a particular disadvantage by a multiple choice test as part of the recruitment process, and this was not objectively justified.

The case

Applicants to join the Government Legal Service must undergo psychometric testing, the first stage of which is a multiple choice test known as the Situational Judgement Test (SJT). Since the test demands objectively right answers to each question, it can be marked by computer without human intervention or judgement.

The Claimant has a law degree and Asperger’s syndrome. She applied to join the GLS as a trainee solicitor, and argued that because of her Asperger’s she was unlawfully disadvantaged by the format of the test. A month before the test, she asked if she could answer the questions in the form of short narrative written answers instead. This request was refused, but the Respondent did say that if she passed the first three entry level tests, they might allow her extra time at the next stage of the process. In fact, she scored 12 out of 22 points in the test (against a pass mark of 14) and her application went no further.

The Employment Tribunal found that the format of the SJT put people with Asperger’s, and the Claimant herself, at a disadvantage compared to those without. The Respondent had indirectly discriminated against the Claimant, had failed to make reasonable adjustments, and treated her unfavourably because of something arising in consequence of her disability. The test was not objectively justified because, although it served a legitimate aim (recruiting the best candidates by testing their ability to make effective decisions), it was not proportionate.

The Respondent appealed, arguing that the test did not put the Claimant at a particular disadvantage, and that the tribunal had approached the issue of justification wrongly.

The EAT dismissed the Respondent’s appeal.

The medical evidence (from the Claimant’s own psychiatrist, and the Respondent’s expert) before the Employment Tribunal was not conclusive, but both had agreed that a person with Asperger’s who lacked social imagination was likely to be disadvantaged by the test, and both experts agreed that she fitted this profile. Together with the Tribunal’s own findings of fact, it supported the Tribunal’s decision that the Claimant was placed at a particular disadvantage. No alternative theory about why she had failed to reach the required level was put forward, so the tribunal was entitled to find (on the balance of probabilities) that the nature of the test was responsible.

The Respondent also argued that the tribunal had approached the question of justification incorrectly as it had failed to carry out the necessary balancing exercise, and had not placed enough emphasis on the need to assess core competencies for the role – inextricably linked, said the Respondent, with the chosen method of doing so. The EAT disagreed. It was necessary to test the applicant’s ability to make effective decisions, but the tribunal was entitled to find that there were other ways of doing so besides a computer-marked, multiple choice test.

What to take away

The Respondent was using psychometric testing procedures in order to ensure a level playing field without human bias – but the process was still found to be discriminatory. The inconvenience to the employer of allowing the Claimant to give short written answers (it would have been more costly and require subjective marking) did not outweigh the benefit to the Claimant.

Employers using psychometric testing need to consider whether the process puts those with certain disabilities at a disadvantage and, if so, adjust the exercise if necessary – for example, by allowing extra time or, as here, by tweaking the usual method of testing.

While an employer may choose to seek further medical information, it may be safer to simply give applicants the benefit of the doubt, particularly in a process such as this which involved many different stages.

Recommendations

The tribunal ordered the Respondent to pay compensation to the Claimant and made two recommendations: that she receive a written apology, and more widely that the Respondent review its recruitment procedures with a view to greater flexibility in relation to people with disabilities.

Tribunals no longer have the power to make recommendations other than for the benefit of the individual in claims brought after 1 October 2015. If the employer fails to comply with a recommendation for the benefit of the claimant, the tribunal may choose to increase compensation due; however, there is no power to enforce a recommendation.