In the case of The Government Legal Service v Ms Brookes, the Employment Appeal Tribunal has held that a candidate with Asperger’s syndrome was indirectly discriminated against and treated unfavourably because of something arising in consequence of her disability. It also held that The Government Legal Service had failed to make reasonable adjustments.
The Government Legal Service (the employer) required all candidates for trainee legal positions to complete and pass an online multiple choice “Situational Judgment Test” as part of its recruitment process. This requirement amounted to a provision, criterion or practice (PCP). Following the opening of the recruitment process, the candidate (Ms Brookes) contacted the employer’s recruitment team and requested adjustments on the ground of, amongst other things, her Asperger’s syndrome. The employer therefore had knowledge of her condition. She was advised that an alternative test format (providing short written answers) was not possible, but that time allowances (such as more time to complete tests) were. A guaranteed interview scheme for candidates who passed three required tests, including the “Situational Judgment Test,” was also in place.
The candidate completed the online "Situational Judgment Test" (which did not have a time limit), but did not pass. As a result, she did not progress through the recruitment process. The candidate brought claims for indirect discrimination, unfavourable treatment because of something arising in consequence of her disability and failure to make reasonable adjustments.
The initial employment tribunal found in favour of the candidate. In particular, it held that the PCP created a group disadvantage that, in turn, put the candidate at a disadvantage because of her Asperger’s syndrome – something supported, generally speaking, by the medical evidence in the case. Whilst the "Situational Judgment Test" served a legitimate aim in testing a candidate’s ability to make effective decisions, the employment tribunal found that the means of achieving that aim were not proportionate to the aim. The employer appealed.
The Employment Appeal Tribunal held that the employment tribunal’s decisions were correct in law and rejected the employer’s grounds of appeal.
The case is a reminder to employers of some of the issues that can arise during recruitment, before employment starts. Some practical points to keep in mind:
- As soon as an employer has knowledge that a candidate suffers from a disability and may be placed at a substantial disadvantage compared with candidates who are not disabled (or ought reasonably to have known this), it should consider carefully its responsibilities under the Equality Act 2010.
- In particular, an employer should consider what adjustments (if any) it can reasonably make to any stages of the recruitment process. What is reasonable will depend on the circumstances, but simply allowing a candidate extra time to complete a test (for example) may not be enough.
- If there is a risk of an indirect discrimination claim, because of any PCP operated by an employer, thought should be given to how that PCP might be justified. Any PCP must be a proportionate means of achieving whatever legitimate aim (real business need) an employer may be seeking to rely on. Where appropriate, there should be documentary evidence in place to support an employer’s justification.
With the increased use of online tests by some employers, with marking completed by computer systems without human intervention or judgment, employers should consider whether a requirement for candidates to undertake such tests can be justified in the circumstances. For there to be proportionality, 1) an employer must demonstrate that the measures taken by it were "reasonably necessary" in order to achieve the legitimate aim being relied on and 2) there were no less discriminatory means available. A tribunal will undertake a balancing exercise – was the business need relied on by the employer sufficient to outweigh the impact of the measures on the protected group generally and on the individual in particular? Employers should also be mindful of the provisions of the General Data Protection Regulation (GDPR), which comes into force on 25 May 2018, regarding automated decision-making. Under the GDPR, individuals will have the right not to be subject to automated decision-making.