The Equality Act 2010 prohibits unlawful discrimination in the workplace including indirect discrimination and discrimination arising from disability.
- Indirect discrimination occurs when the employer has a provision, criterion or practice (PCP) that applies to everyone in the same way, but it puts a person with a disability at a disadvantage, and the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.
- Discrimination arising from disability occurs when someone is treated unfavourably because of something arising in consequence of the disability rather than the disability itself.
The Equality Act 2010 also puts employers under a duty to make reasonable adjustments for disabled employees and job applicants who are placed at a substantial disadvantage because of their disabilities.
The Government Legal Service (GLS) were recruiting trainee solicitors, with the first stage of the recruitment process requiring the candidates to undergo a multiple choice Situational Judgement Test (SJT). Ms Brookes, who has Asperger’s syndrome, applied for the post and asked if GLS could make an adjustment to the format of the test on account of her Asperger’s. The GLS informed her that an alternative test format was not available.
Subsequently, Ms Brookes failed the test and brought a claim for indirect discrimination on the grounds of disability, discrimination because of something arising in consequence of a disability and failure to make reasonable adjustments. She argued that because of her Asperger’s she was unlawfully disadvantaged by the multiple-choice method of testing.
The employment tribunal (Tribunal) found that the requirement of all applicants to take and pass the SJT was a ‘provision, criterion or practice’ that put a group of people, such as Ms Brookes, at a disadvantage compared to those who did not have Asperger’s Syndrome. Although the Tribunal accepted that the PCP served a legitimate aim in testing the fundamental competencies of prospective trainees, it did not accept that the means of achieving that aim were proportionate. The Tribunal further concluded that a reasonable adjustment could have been made to the test, for example, by allowing Ms Brookes to supply written answers. The Tribunal ordered GLS to pay Ms Brookes £860 in compensation and to provide an apology.
Employment Appeal Tribunal (EAT)
GLS appealed to the EAT arguing that:
- The Tribunal had moved from the position that people with Asperger’s are generally disadvantaged by the multiple choice test, to an assumption that Ms Brookes, in particular, was affected. GLS argued that, in this regard, medical evidence did not support the Tribunal’s findings; and
- The Tribunal’s approach to justification was incorrect, and the Tribunal had not placed enough emphasis on the GLS’ need to assess a core competency
The EAT dismissed the appeal and upheld the Tribunal’s decision. The key to the EAT’s reasoning was:
- Although the medical evidence on whether Ms Brookes suffered a disadvantage was “inconclusive”, the Tribunal was entitled, on the balance of probabilities, to reach a conclusion based on the evidence before it that Ms Brookes failed to achieve the pass mark due to the format of the test; and
- While they acknowledged that the GLS needed to test the core competency of an applicant, the Tribunal was entitled to reject the argument that the only way of doing this was using the test – inconveniences to GLS did not outweigh the factors on Ms Brookes’ side.
Employers who rely on psychometric testing as part of their recruitment procedures need to consider their practices to ensure they do not unintentionally discriminate against candidates with disabilities. When candidates make requests for reasonable adjustments, you should be careful not to reject them automatically, and instead, consider whether allowing extra time or otherwise adjusting the chosen method of testing may be necessary.
To find out more about the impact this decision could have on your business, or to discuss any other equality and diversity issues, please get in touch with your usual contact or speak to Anna Dabek.
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