The Government Legal Service -v- Brookes UKEAT/0302/16 assessed whether a job applicant with Asperger’s syndrome was discriminated against on the basis of her disability because she was required to undertake a multiple choice test designed to assess her ability to make decisions.

The claimant’s request, a month in advance, to receive answers in a different format was rejected and she was not successful in passing the test. It was found to have been a provision, criterion or practice (PCP) which placed her at a particular disadvantage and although the Government Legal Service indicated that extra time may be possible at a later stage in the recruitment process, no adjustments were made to the first multiple choice test to remove the disadvantage suffered by the applicant.

The EAT did not accept the argument by the Government Legal Service that the format of the test was inseparably linked to the competencies being tested. Although short narrative answers would have had to have been marked in a slightly different way, this minor inconvenience did not justify the PCP and the applicant was found to have been indirectly discriminated against.