EAT Rules Asperger’s Sufferer Was Discriminated Against Does HR need to change recruitment processes following EAT ruling?
An Employment Appeal Tribunal (EAT) has ruled that a woman with Asperger’s syndrome
was discriminated against during the notoriously competitive recruitment process for the Government Legal Service (GLS).
Terri Brookes, who represented herself, was asked to take a situational judgement test as part of the first stage of her application. She had requested to be allowed to submit short written answers to the questions as the multiple-choice format of the test placed her at a disadvantage. While the GLS did make time allowances they did not allow an alternative test format, arguing that the testing was a proportionate method for determining the best candidates for the position.
Brookes took the multiple choice test in July 2015 but scored 12 out of a possible 22, 2 less than the passing mark of 14 and her application failed. Evidence showed that of the small number of applicants who had declared themselves as having ASC or Asperger’s, only one had passed the test.
employment tribunal ruled last year that there was no other identifiable reason why Brookes had failed the test other than her disability and that, by asking her to take the test as it stood, the GLS had indirectly discriminated against her, treated her unfairly and failed to make reasonable adjustments to take her disability into account. The GLS appealed but the EAT upheld the original ruling and refused permission to appeal the case any further.
Emma O’Leary is an
employment law consultant for the ELAS Group. She says: “This case is important because tests such as those carried out by the Government Legal Services i.e. psychometric testing are prevalent methods of recruitment across all industries. Said to assess a candidates particular skills in certain areas, employers find this scientific method of considering suitability for a role more precise. Although this case is important, it seems quite obvious that certain candidates may be disadvantaged by these tests – such as those with dyslexia and, as in this case, Asperger’s.
“It highlights the importance of considering reasonable adjustments for disabled candidates and if your recruitment process includes testing such as this, or any other method that could be considered a PCP, it is imperative that you can demonstrate that the PCP is a proportionate means of achieving a legitimate aim if it’s capable of putting a particular group at a disadvantage. This case would not have failed if the GLS had allowed the Claimant to answer the questions in a different format than the multiple choice they insisted upon.
“It might not be necessary to review recruitment processes overall, however, companies should ensure that on application, a candidate is asked whether they require any reasonable adjustments. If they indicate that they do, then the employer should enquire what is required. It might be as simple as having regular breaks during the interview, however, if you use any form of testing method such as psychometric then you should consider whether an alternative should be deployed in the event that the candidate is unable to complete such tests, or unable to complete them in the exact method you would normally require. This does not necessarily make that candidate unsuitable for the role they are applying for. If you are unable to make reasonable adjustments, your reasons must be justifiable and stand up to the scrutiny given in this recent ruling. Whilst it does not mean the end of psychometric testing by any means, it does mean that employer should ensure disabled candidates are not disadvantaged to the extent that they are unsuccessful in their application purely because their disability did not allow them to perform as well in the tests as a non disabled person.”