Are job applicants protected against disability discrimination?

Yes. The Equality Act 2010 protects job applicants from being discriminated against and treated less favourably on the grounds of disability. Employers are becoming increasingly aware of this protection in light of recent case law.

In the recent case of The Government Legal Service v Ms Brookes UKEAT/0302/16/RN, the Employment Appeal Tribunal held that a job applicant who had Asperger’s syndrome was:

1. Indirectly discriminated against;
2. Treated less favourably because of something arising in consequence of her disability;
3. Put to a detriment because the Government Legal Service (Respondent) had failed to make reasonable adjustments.

I examine the case below.

The Facts

As part of its recruitment process, the Respondent had a requirement that all candidates or applicants for trainee solicitor roles were to complete and pass an online multiple choice “Situational Judgment Test” (SJT). The Claimant contacted the Respondent and notified them that she suffered with Asperger’s syndrome and requested reasonable adjustments. Accordingly, the Respondent had knowledge of the Claimant’s disability. She was told that an alternative test format was not available, although she would be given extra time in interviews if she successfully passed the SJT.

The Claimant did not pass the SJT. The SJT did not have a time limit. Consequently, she was informed she had not passed the test and would not be required to attend a further interview.

The Claimant brought claims for indirect discrimination, unfavourable treatment because of something arising in consequence of her disability and failure to make reasonable adjustments.

The Law

A disability is defined in the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on your ability to do normal daily activities. Therefore, the Claimant was disabled under this definition. Under the Equality Act, it is unlawful for an employer to:

1. Discriminate directly by treating a job applicant or employee less favourably than others because of disability;
2. Discriminate by treating a job applicant or employee unfavourably because of something arising in consequence of disability without objective justification;
3. Discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages job applicants or employees with a disability without objective justification;
4. Fail to comply with its duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage.

The requirement imposed by the Respondent in this case to undertake the SJT amounted to a provision, criterion or practice (PCP).

The Judgement

The employment tribunal held the Claimant had been unlawfully discriminated against and therefore found in favour of the Claimant. It found that the PCP created a group disadvantage which also put the candidate at a disadvantage because of her disability. The employment tribunal found that the SJT went towards meeting a legitimate aim, however the means of achieving that aim were not proportionate. The Tribunal ordered the Respondent to pay compensation to the Claimant and recommended that the Respondent issue an apology to the Claimant. The Respondent appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal dismissed the appeal and held that the employment tribunal’s decisions “were unassailable and correct in law“.

Points to consider for Employers

The case is a stark reminder to employers that the Equality Act protects disabled job applicants as well as employees. Employers should therefore take advice when planning recruitment processes to avoid treating disabled job applicants less favourably. A few thoughts:

1. An employer cannot be liable for discrimination arising from disability under the EqA 2010 unless it knew (or should have known) about the claimant’s disability. Employers should however still consider whether a worker has a disability even where one has not been formally disclosed to avoid a suggestion that they have ‘constructive’ knowledge.
2. It is for an employment tribunal to objectively determine whether a particular adjustment would have been reasonable to make in the circumstances. It will take into account matters such as the cost of the adjustment in the light of the employer’s financial resources and the disruption that the adjustment would have had on the employer’s activities.
3. An employer must not have selection criteria, policies, employment rules or any other practices that are apparently neutral but the effect of the PCP is to disadvantage employees or job applicants sharing a disability, unless they can be objectively justified.

If you have any queries or would like to discuss any of the above further, please feel free to contact me or one of the Employment team.