Yes applicants are protected from disability discrimination. 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.
The most common claims are for indirect discrimination and failure to make reasonable adjustments. This is where all job applicants are held to the same requirement, however this particularly disadvantages a job applicant because of their protected characteristic.
Employers are also under an obligation to make reasonable adjustments to address any disadvantage as a result of a disability during the recruitment process.
For example, in a recent case the Government Legal Service 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). One applicant contacted the Respondent and notified them that she suffered with Asperger’s syndrome and requested reasonable adjustments in relation to the SJT. She asked to submit a written narrative alongside her answers as her condition meant that she found the social imagination element of multiple choice scenarios challenging. 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 applicant did not pass the SJT and her application was not taken any further.
The Government Legal Service argued that the multiple choice format was a good indication of later performance and that the narrative format sought by the applicant would be expensive, cause logistical difficulties and not be as useful a tool. They argued that applicants with Asperger’s would only be able to make decisions effectively (a requirement of the position) if they could also manage the multiple choice format of the test.
The Employment Tribunal decided that the applicant had been unlawfully discriminated against as the Government Legal Service could not show that its insistence on the SJT being taken without adjustments was a reasonable or proportionate means of achieving its aims in its recruitment process.
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. Under the Equality Act, it is unlawful for an employer to:
The requirement imposed by the Respondent in this case to undertake the SJT amounted to a provision, criterion or practice (PCP).
Employers should take advice when planning recruitment processes to avoid treating disabled job applicants less favourably.
This case demonstrates how important it is for employers to take a prospective employee’s disability into consideration during the recruitment processes. Where an employee suffers from a physical or mental condition which has a long term and substantial effect on their day to day activities, employers must:
Employers who rely on standardised testing should be clear as to the reasons for this and be able to clearly explain why the tests used are a key part of their recruitment process for the role. They should always carefully consider any requests for adjustments made.
This is just one of the tricky decisions employers need to make day to day to ensure compliance with disability discrimination rules. If you are concerned or have any queries please contact our Employment team.