The EAT has upheld a tribunal's decision that a job applicant suffering from Aspergers was discriminated against when her prospective employer required her to take a multiple choice test, refusing to adjust the format of the test.

The Facts

Ms Brookes, who suffers from Asperger's syndrome, is a law graduate. She applied for a job as a trainee lawyer for the Government Legal Service (the GLS). The first stage of the recruitment process, which was described by the EAT as being fiendishly competitive, was a situational judgement test (SJT), which is a multiple choice test. Ms Brookes requested adjustments on the grounds of her Asperger's syndrome. She was told that an alternative test format was not available, though time allowances were available, as well as a guaranteed interview scheme, but only for those who passed the SJT and two subsequent tests. Ms Brookes took part in the SJT and scored 12 points out of 22. The pass mark had been set at 14, and she therefore failed the SJT, and did not get through to the next stage of the recruitment process.

Ms Brookes said that the GLS should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative answers. She claimed that she had suffered indirect disability discrimination, that she had been treated unfavourably because of something arising in consequence of her disability, and that the GLS had failed to make reasonable adjustments. The tribunal upheld all three claims, awarded compensation of £860, and recommended that the GLS issued a written apology and reviewed its recruitment procedures for people with a disability. The GLS appealed to the EAT, which held that the tribunal's judgment was unassailable and correct in law.

In reaching its judgment, the EAT considered how the tribunal had reached its decision.

Both parties put forward medical evidence from expert witnesses about whether the requirement for all applicants to take and pass the SJT (the provision, criterion or practice, or "PCP") made it more difficult for applicants with Aspergers, and Ms Brookes in particular, to pass this stage of recruitment. While the answer to this was not clear cut, the tribunal decided that, on the balance of probabilities, she had failed the test because of her Aspergers. The EAT held that the tribunal had actually gone further than it needed to on this point: it would have been sufficient to find that the requirement had made it substantially more difficult to have passed the test. However, the validity of its reasoning was not affected by the fact that the tribunal went further than necessary. Ms Brookes had suffered a personal disadvantage from the application of the PCP.

The GLS argued that the PCP was justified as a proportionate means of achieving the legitimate aim of recruiting the best candidates by testing a fundamental competency required of GLS trainees, namely the ability to make effective decisions. It said that the written narrative format requested by Ms Brookes would not be a useful tool because, among other things, it would require the application of subjective human judgement. The GLS also said that it would be more expensive and cause logistical difficulties. Ms Brookes did not dispute the need for a candidate's decision making powers to be properly measured, but said that this could be done without scrapping or fundamentally modifying the SJT. It could be done by permitting a small number of persons, such as herself, who had requested it to perform the SJT in a different format. The EAT agreed with the tribunal's decision that although the GLS had a legitimate aim, the means of achieving it had not been proportionate. The EAT referred to the balancing exercise the tribunal had gone through to determine the issue of proportionality, assessing the employer's side of the balance, accepting that it would "not be ideal to have to run two such different methods of assessment alongside or in parallel, and that 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 EAT held that the factors on the employee's side of the balance outweighed this.

What does this mean for employers?

Last month, we looked at the decision in Essop (see here), which related to testing candidates for promotion. These cases show the importance of employers being alive to the possibility of promotion and recruitment (and other) practices having a disparate impact on candidates with protected characteristics. Where there is a disparate impact, employers should proactively consider whether there is a less discriminatory way of achieving their aim: if there is one and it is not adopted, the employer will not be able to justify the practice. If disabled candidates request changes in the recruitment processes, employers should carefully consider whether they can be flexible, bearing in mind that (as was the case with the GLS) they may have to do so even where the impact on the employer is less than ideal.

Government Legal Services v Brookes UKEAT/0302/16