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