Labour & European Law Review Weekly Issue 525 21 June 2017
The Employment Appeal Tribunal has held in The Government Legal Service v Brooke, that a failure by an employer to offer a potential employee an alternative to a multiple choice test constituted indirect discrimination and discrimination because of something arising from her disability. The fact that medical evidence was inconclusive did not mean that the employee was not put at a particular disadvantage.
Candidates wishing to join the Government Legal Services (GLS) have to pass a multiple choice Situational Judgment Test (SJT), as the first stage in a “fiendishly competitive” recruitment process.
Prior to taking the online test Ms Brookes, who has Asperger’s, asked the GLS if she could answer the questions in the form of short narrative written answers. She was told that there was no alternative test format but it guaranteed her an interview if she passed the SJT and two other subsequent tests. She took the test but failed, scoring 12 points out of a possible 22, with 14 being the pass mark.
She brought claims of indirect discrimination; failure to make reasonable adjustments; and discrimination because of something arising in consequence of her disability.
The tribunal held that the GLS had applied a provision, criterion or practice - a requirement for all applicants in the trainee recruitment scheme to pass the online SJT – which put people with Asperger’s at a disadvantage as a group.
It also put Ms Brookes at a particular disadvantage. She was intelligent, resourceful and capable, had experience as a paralegal which would have given her experience of practical decision making and, according to the expert medical evidence, fitted the profile of those would likely be disadvantaged. Crucially, no other alternative explanation was provided as to why she did not perform better in the SJT.
While the PCP served a legitimate aim – testing the competency required of GLS trainees to make effective decisions - the means of achieving that aim were not proportionate as the GLS could have made adjustments for her. Accordingly, the complaint of indirect discrimination succeeded. The claim in respect of reasonable adjustments also succeeded for similar reasons. As the claim for discrimination because of something arising in consequence of a disability stood or fell with the indirect discrimination claim that succeeded as well.
The GLS appealed against the tribunal decision that Ms Brookes was put at a particular disadvantage by the SJT.
Upholding the tribunal’s decision, the EAT held that its reasoning was cogent and properly supported the conclusions it reached.
The tribunal was entitled to come to the view that the requirement to pass the test put Ms Bookes at a particular disadvantage. The fact that the medical evidence was “inconclusive” did not prevent the tribunal from finding that, together with other evidence, she had failed the test because she had Asperger Syndrome.
The tribunal had also successfully dealt with the issue of proportionality. It accepted that it would not be ideal for employers to run two different tests in parallel with one another, not least because there would be difficulties in comparing candidates' responses. In addition, it would involve a degree of subjectivity. However, these factors were outweighed by the disadvantage incurred by Ms Brookes. The GLS should therefore have made the reasonable adjustment of allowing her to answer the questions using short, narrative, written answers.
The decision illustrates the need for employers to ensure that any recruitment tests do not discriminate against those with a disability. Where there is medical evidence which is inconclusive employers should err on the side of caution.