The claimant in Government Legal Service v Brookes was required to sit a situational judgment test (SJT) as part of a very competitive recruitment exercise for trainee solicitors. When the timetable for the application process was published, the claimant contacted the recruitment team and requested adjustments on the ground of, among other things, her Asperger’s syndrome. She was told that an alternative test format was not available.
After the application process opened, the claimant repeated her complaints about the discriminatory impact on her of the testing. She submitted her online SJT test, scoring 12 points out of a possible 22, below the pass mark of 14, and her application was rejected.
The Tribunal found that GLS had indirectly discriminated against the claimant, had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability. Because of her Asperger's, the claimant was unlawfully disadvantaged by the multiple choice method of testing and GLS should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers. On justification, the Tribunal concluded that while the requirement to pass the online SJT served a legitimate aim – testing a fundamental competency required of trainees (the ability to make effective decisions) – the means of achieving that aim were not proportionate. GLS had not produced evidence which showed why the multiple choice test was necessary.
In the EAT, GLS unsuccessfully challenged the Tribunal's findings. On group and individual disadvantage, the claimant had produced medical evidence to show how the multiple choice format put her at a disadvantage and had demonstrated the potential effect of adjustments (such as replacing multiple choice with questions requiring a short written answer); similar changes had been made for her as part of the law course she was undertaking. The Tribunal's approach to justification had also been correct. Although GLS needed to measure candidates' decision making powers, that could be done without fundamentally modifying the SJT by allowing a small number of applicants who requested it, such as the claimant, to perform the test in a different format.
This decision, added to the recent Essop Supreme Court Case, has exposed the use of assessment testing in recruitment and promotion processes to scrutiny. Employers can use such tools to assess particular skills needed for a job, but from a disability discrimination point of view the method of testing may need to be flexible. At the very least, it makes sense to think carefully about agreeing to adjustments if they are requested (and are logistically feasible).