The recent case of The Government Legal Services (GLS) v Brookes has highlighted the need for employers to exercise caution when using selection tests to recruit staff to avoid disability discrimination.
Brookes asked if she could answer the test using short narrative instead of multiple choice, (a recommendation previously supported by her psychiatrist in relation to her university studies). This is because her condition meant that she 'lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios'.
GLS refused the adjustment and told Brookes that there was no alternative test format available. Brookes scored 12/22 but required 14/22 to progress to the next stage of the recruitment process. She brought a claim of disability discrimination and was successful.
The Employment Tribunal found that the requirement for all applicants to take and pass the psychometric test put a group of people, such as Brookes, at a particular disadvantage compared to those who do not have Asperger’s Syndrome.
The Tribunal accepted that the aim of the psychometric test was legitimate, i.e. assessing fundamental ability is not in itself discriminatory. However, the method of achieving the aim was not proportionate. This is because GLS refused to implement another way of answering the test, despite Brookes making a suggestion of using short narrative answers.
Additionally, the Tribunal held that psychometric testing was not the only way to assess the core competency of applicants.
GLS was found liable for claims of indirect disability discrimination, failing to make reasonable adjustments and discrimination arising from disability.
This case is a reminder that discrimination protection is not only afforded to current employees but to those who apply for jobs, (successfully or unsuccessfully). It also applies to former employees.
If faced with a request to make an adjustment from a disabled applicant, employers would be well advised to exercise caution before saying no.
Allowing disabled job applicants extra time to respond/complete tests, offering a different way of measuring competence, as well as making adjustments to the interview process generally, may all be classed as reasonable adjustments under the Equality Act 2010.
The good news is we are covering disability discrimination at our next round of HR Hot Topic seminars - “Disability Discrimination, Don’t Get Caught Out…”. More information is available on our Events page.
If you need advice in relation to any aspect of employment law, please contact a member of our Employment team who will be pleased to help.