Andrew Willshire and Claire Merritt | 21st January 2022

Are job applicants protected against disability discrimination?


Andrew Willshire and Claire Merritt | 21st January 2022

Are job applicants protected against disability discrimination?

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 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. 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; or
  4. fail to comply with its duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage.

What can amount to discrimination in relation to job applicants?

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.

Can a multiple choice recruitment test constitute disability discrimination?

The simple answer is yes it can and this issue recently arose in a case before the Employment Tribunal involving the Government Legal Service.

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. She subsequently brought a discrimination claim against the Government Legal Service.

In their defence, 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 did not agree with this analysis and 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.

Points to consider for Employers

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:

  1. refrain from discriminating against the employee;
  2. refrain from treating the employee unfavourably because of something arising in consequence of disability; and
  3. make reasonable adjustments where a neutrally applied provision, criterion or practice puts that disabled person at a disadvantage.

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.