In the recent case of The Government Legal Service v. Brookes UKEAT/0302/16/RN, it was held that a job applicant with Asperger’s Syndrome was discriminated against by being required to sit a psychometric test.
In 2015, Ms Brookes submitted an application to The Government Legal Service (GLS) to be a Trainee Solicitor. The Employment Appeal Tribunal (EAT) referred to “a fiendishly competitive recruitment process” and commented that there are “several thousand applications for about 35 places each year.” The GLS invited Ms Brookes to participate in psychometric testing, which involved a multiple choice Situational Judgement Test (SJT).
In advance of completing the SJT, Ms Brookes contacted the recruitment team and requested adjustments on the grounds of, amongst other things, her Asperger’s Syndrome. 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.
Ms Brookes was informed that an alternative test format was not available, though she was granted additional time. Notwithstanding her concerns, Ms Brookes completed the SJT and scored 12 points out of a possible 22. This was below the set pass mark of 14 points and therefore, she was notified that she had not passed the SJT.
Ms Brookes subsequently made a claim in the Employment Tribunal (ET) against the GLS for indirect discrimination, failure to make reasonable adjustments, and discrimination arising from disability.
At Tribunal, the GLS argued that the multiple choice format was a good indication of later performance and that the narrative format sought by Ms Brookes 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 ET found in Ms Brookes’ favour in respect of her claims. It explained that a ‘provision, criterion or practice’ (PCP) (i.e. the requirement that all applicants pass the SJT) put those with Asperger’s Syndrome, and Ms Brookes, at a particular disadvantage compared to those who did not have Asperger’s Syndrome. In addition, while the PCP served a legitimate aim, the Tribunal held that the means of achieving the aim were not proportionate to it.
Employment Appeal Tribunal
The GLS appealed against the Tribunal’s decision on the following grounds:
The EAT rejected both grounds of appeal by the GLS, holding that the ET had appropriately applied the law and had adopted the correct approach when carrying out a proportionality assessment. The Tribunal acknowledged that whilst the GLS needed to test the core competency of ability of its candidates to make effective decisions; enforcing a psychometric test on all applicants was not the only way to achieve this.
Kerr J summarised that:
“The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it… the tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple-choice format of the SJT.”
It ordered the GLS apologise to Ms Brookes and pay her £860 in compensation. Furthermore, it encouraged the GLS to review its procedures in relation to people with a disability applying for employment, with a view to greater flexibility in the psychometric testing regime.
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:
a) Refrain from discriminating against the employee;
b) Refrain from treating the employee unfavourably because of something arising in consequence of disability; and
c) Make reasonable adjustments where a neutrally applied provision, criterion or practice puts that disabled person at a disadvantage.
How we can help
At Paris Smith we have experience of dealing with the complex issues of Asperger’s Syndrome and Autism in the workplace. This case demonstrates 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.