The Employment Appeal Tribunal has held that a job applicant with Asperger’s Syndrome suffered discrimination when she was required to sit a multiple choice psychometric test as part of a recruitment process.
Facts
In the recent case of The Government Legal Service v Brookes, Ms Brookes, a law graduate with Asperger’s Syndrome, applied for a trainee solicitor position with the Government Legal Service (GLS). As part of the first stage of recruitment, the GLS required all candidates to sit an online multiple choice situational judgement test, which is designed to test effective decision making.
Ms Brookes contacted the GLS a month before sitting the test to request that the format be adjusted to allow her to provide answers in short narrative form due to the effects of her Asperger’s Syndrome. She was told that no adjustments to the format of the test would be made, but that extra time would be given for her to complete the test. Ms Brookes subsequently took the test and missed the pass mark by two points.
Decision
The EAT upheld the employment tribunal’s findings that the “provision, criterion or practice” of requiring all candidates to pass a multiple choice situational judgement test put applicants with Asperger’s Syndrome at a particular disadvantage compared to those without Asperger’s Syndrome. It also found that Ms Brookes herself was at a particular disadvantage based on expert medical evidence. The evidence suggested that she was likely to be disadvantaged because those with Asperger’s tend to lack social imagination, which makes it difficult to make a clear-cut decision in such a test. Ms Brookes’ psychiatrist had also previously advised that multiple choice format tests were not appropriate for her, and the GLS had failed to suggest any alternative reasoning for why she failed the test despite successfully obtaining a law degree.
Furthermore, although the EAT found that the multiple choice test pursued the legitimate aim of examining a key competency, the means of achieving that aim were not proportionate. Reasonable adjustments in the form suggested by Ms Brookes could have been made but were not. Although these may have resulted in extra costs and difficulties in examining the test, these did not outweigh the disadvantage caused to Ms Brookes.
Ms Brookes consequently succeeded in her claims against GLS for indirect disability discrimination, discrimination because of something arising in consequence of her disability and a failure to comply with the duty to make reasonable adjustments.
Comment
This case has important implications for the many employers who use psychometric testing as part of their recruitment process. Although these tests are designed to be fair and impartial, this case demonstrates that they can discriminate against disabled applicants. It is therefore important to consider alternative methods of testing where disabled candidates may be at a disadvantage.
Lloyd Davey