Why employers must take care with recruitment tests or disability discrimination can easily arise

A recent Employment Appeal Tribunal (EAT) decision has highlighted once again that discrimination claims can be raised by prospective candidates for employment, not only employees.

In practical terms, what this means is that employers should be prepared to be flexible about their recruitment procedures, and adjust for employees with disabilities who require changes as a result of their disability.

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Facts of the case

In Government Legal Service v Brookes a 33-year-old law graduate, B, previously diagnosed with Asperger syndrome in 2009, applied to work for the Government Legal Service. GLS is a national organisation that provides legal services to the UK government. GLS' recruitment process for its 35 trainee solicitor positions is extremely competitive, with thousands of applications per year. Several stages had to be passed in order to be successful, including an online multiple choice test.

Prior to the online multiple choice test, B contacted the respondent's recruitment team to request that she be allowed to answer the questions in the form of written answers, rather than in the multiple choice forma, because she would be at a disadvantage due to the nature of her Asperger's. GLS refused this request, stating that they could provide her with extra time, but not an alternative format of test. B took the test and scored 12 out of a possible 22, failing, as the pass mark was 14. B subsequently claimed discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments, as per section 15, 19 and 20 of the Equality Act 2010.

Judgment of the Employment Tribunal

The Employment Tribunal (ET) held that the test put B a disadvantage. Expert medical evidence, accepted by the ET, explained that the nature of the compulsory test placed people with Asperger Syndrome at a particular disadvantage compared to those who do not have it.

GLS attempted to argue that the test served a legitimate aim, in that it tested the competency required of trainee solicitors, in particular their ability to make decisions. Furthermore, they argued that since they open their recruitment to candidates with a 2:2 degree award in their degree, the number of applications is insurmountable without imposing such a test. The ET accepted that there was a legitimate aim of testing fundamental competencies of candidates, but there were less discriminatory means of doing so which would have avoided the discriminatory treatment.

The ET ruled that GLS had subjected her to indirect disability discrimination and discrimination because of something arising as a consequence of her disability. Also, their failure to change the format did amount to a failure to make reasonable adjustments. The tribunal ordered GLS to pay compensation to B, issue a written apology to her and review its internal procedures relating to treatment of persons with a disability.

Judgment of Employment Appeal Tribunal

GLS appealed, arguing the decision to be perverse and unsupported by evidence. They tried to argue that there was no proper basis to the finding that the test placed B at a particular disadvantage compared to people without Asperger's. The EAT held that the ET's reasoning was logical and persuasive. The evidence given by expert witnesses at the tribunal was considered to be sound. Whilst the EAT acknowledged that it was valid for GLS to use the multiple choice test to determine the ability of candidates to make decisions, it was not the only method open to them of doing this.

Practical consequence of this decision

As noted at the beginning of this article, employers should be prepared to be flexible about their recruitment procedures, and adjust for employees with disabilities who require changes as a result of their disability.

If a candidate comes forward and explains that they have a difficulty with an aspect of the stated process, employers, particularly larger employers, should be very slow to stick to their own decided and stated procedures. An adjustment for one applicant does not necessarily mean the whole procedure must be changed for everyone else.

Get in touch

Specialist legal advice on the law surrounding recruitment processes, and employer's duties relating to reasonable adjustments, can be sought on a proactive or reactive basis. We can help by reviewing your recruitment procedures and discussing with you if there are any areas that may be vulnerable to challenge or require change. Training for people involved in decision-making is also important, particularly regarding the Equality Act 2010.

If an incident or issue arises in practice, we can safely steer you through the steps to take to manage the risks and properly discharge your obligations.

Please get in touch as we'd be delighted to assist you.