Volunteers are often the bedrock of charitable organisations, but they are not protected from sexual harassment within those organisations.
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.
For more information
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.
Here at Anthony Collins Solicitors, we have been hard at work advising a charity client, BICMP, on its new music project, ‘Resonance’.
Currently, the only ground for divorce is irretrievable break down of a marriage. Following a consultation, the Government has announced its intention to reform the legal requirements for divorce.
The UK Information Commissioner’s Office (ICO) has recently made some noteworthy changes to its guidance around data subject access requests (DSARs).
In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
A local authority recently received a "roasting" by the Pensions Ombudsman for their delay in processing an employee’s ill-health retirement pension, following her diagnosis with advanced cancer.
The Times is looking for three or four charities to feature in their editions running in December 2019 and early January 2020.
Cliff Mills defines and talks about the importance of social value in his blog, and its potential within Greater Manchester.
Following a power outage at Anthony Collins Solicitors’ (ACS) Birmingham office, our employees and partners currently have limited functionality, including no access to emails.
Joint ventures present an opportunity for housing associations to build organisational capacity, the revenues from which could help deliver on wider social housing commitments.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.