The Government Legal Service v Brookes UKEAT/0302/16

The EAT has upheld the ET's decision that an employer indirectly discriminated against a job applicant with Asperger's syndrome by failing to make reasonable adjustments to a multiple choice test during the employer's recruitment process.

Ms Brookes was made to sit a multiple choice "situational judgment test" as the first stage in what the EAT Judge called a 'fiendishly competitive recruitment process' for lawyers wishing to join the Government Legal Service ("GLS"). She argued that she was unlawfully disadvantaged by the multiple choice method of the test due to her having Asperger's syndrome, and that GLS should have allowed her to complete the test in the form of short narrative written answers. GLS countered that the requirement to sit the test was objectively justified as a proportionate means of achieving a legitimate aim; the aim being to recruit the best candidate by testing their ability to make quick and effective decisions.

Ms Brookes, representing herself, brought claims against GLS of indirect disability discrimination; discrimination due to something arising in consequence of her disability; and that GLS had failed to make reasonable adjustments for her disability. Ms Brookes succeeded on all three counts.

The PCP was held to serve a legitimate aim, i.e. to test a key competency required of trainee lawyers at GLS, but the means of achieving the aim were not proportionate to it. As such, Ms Brookes' claims for indirect discrimination and failure to make reasonable adjustments succeeded.

GLS was ordered to pay £860 compensation to Ms Brookes, and the ET made a recommendation that a written apology be issued.

Employers should take care to ensure that candidates are not placed at a potential disadvantage when competency based tests are used as part of a recruitment process. It is not a requirement that the tests be made easier for disabled candidates; rather, that a variety of formats should be offered in order that all candidates can complete such tests to the best of their ability. Examples of possible adjustments include allowing extra time for the test to be completed and changing the format of the responses to be provided, as was suggested by the Claimant in this case. See also our recent report on the revised test for indirect discrimination.