A recent decision involving the Government Legal Service ('GLS') highlights how important it is for employers to take a prospective employee’s disability into consideration in recruitment processes.
Employers will be aware that where an employee suffers from a physical or mental condition which has a long term and substantial effect on their day to day activities then they must a) refrain from discriminating against the employee; b) refrain from treating the employee unfavourably because of something arising in consequence of disability; and c) make reasonable adjustments where a neutrally applied provision, criterion or practice puts that disabled person at a disadvantage.
GLS requires all applicants for its graduate entry trainee roles to take a multiple choice test and undergo psychometric testing. Ms Brookes applied for a role with GLS. She had been diagnosed as suffering from Asperger’s and so she contacted the GLS recruitment team and requested adjustments on grounds including her Asperger’s syndrome.
GLS told Ms Brookes that there was no alternative to the multiple choice testing format, although they would make time allowances and would guarantee her an interview if she passed the multiple choice test and a further two tests. Ms Brookes raised concerns about this but nevertheless, she took the multiple choice test. Unfortunately, Ms Brookes scored 12 points out of 22 points and GLS decided that the pass mark was 14 points, so she was not invited to an interview.
Ms Brookes brought claims for: failure to make reasonable adjustments, indirect disability discrimination and less favourable treatment because of something arising in consequence of her disability. GLS provided evidence that the multiple choice format was a good predictor of later performance and that the written answer narrative format sought by Ms Brookes would not be a useful tool, would be expensive and cause logistical difficulties. GLS argued that those applicants with Asperger’s would only be able to make decisions effectively, as GLS required, if they could also manage the multiple choice format of the test.
However, the tribunal disagreed. Requiring all candidates to take the multiple choice test was a provision criterion or practice that put those with Asperger’s syndrome, and Ms Brookes, at a particular disadvantage. Similarly that although GLS was pursuing a legitimate aim in testing applicants, the means that it used were not proportionate. Ms Brookes wanted to be able to write out the answers to a test rather than to answer multiple choice questions, but the employment tribunal didn't go that far.
The tribunal decided that she had been discriminated against for reasons arising out of her disability and that this could not be justified. So Ms Brookes won her claims and GLS was ordered to pay her £860 in compensation; issue her with a letter of apology, and review its procedures in relation to applicants with disabilities.
GLS appealed, but the employment appeal tribunal dismissed all of GLS’ arguments. On the evidence available, the employment tribunal had been correct to find that requiring applicants to take a multiple choice test could put some (though not all) sufferers from an autistic spectrum condition at a disadvantage and that as a matter of fact, had put Ms Brookes at a disadvantage given that she was intelligent and capable and there was no alternative explanation as to why she had not performed better.
- Consider whether your recruitment processes are appropriately focussed on the tasks that you need your staff to be able to carry out
- Do not dismiss a request for a reasonable adjustment out of hand: make further enquiries if needed including obtaining a medical report
- Carefully consider whether or not the requested adjustment can be made, bearing in mind:
a) whether it will in fact reduce the disadvantage that the employee might otherwise face
b) the cost of the adjustment as compared to the employer's financial resources, and
c) the disruption that the adjustment might have on the employer's activities
- Remember that failing to take this duty seriously can damage an employer’s reputation