Ensuring a level playing field for job applicants

Posted on June 7, 2017

Employers processing job applications should ensure the process offers a level playing field for applicants with disabilities.

In The Government Legal Service -v- Brookes, the Employment Appeal Tribunal (EAT) upheld a tribunal’s decision that a failure to make adjustments to the job application process for a candidate with Asperger’s syndrome amounted to indirect discrimination.

What were the facts?

Ms Brookes is a law graduate who applied for a job as a trainee solicitor with the Government Legal Service (GLS). The GLS receives thousands of applications for these roles and competition is fierce. The application process in this case required candidates, including Ms Brookes, to sit a multiple choice, psychometric test called a “Situational Judgment Test (SJP)”. The provision, criterion or practice ("PCP") for getting through to interview stage required candidates to pass the online SJP and two other tests.

Ms Brooks informed the GLS that she had Asperger’s syndrome. She asked them to make adjustments to the test so that she could reply in narrative form. The GLS had no alternative test available to Ms Brookes although they did allow her more time. She took the test, failed and did not get the job. She claimed that the GLS had indirectly discriminated against her on the grounds of her disability under (section 19 of the Equality Act 2010).

The tribunal found that the GLS had indirectly discriminated against Ms Brookes: they had failed to comply with their duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability. They were ordered to pay £860, to give a written apology and to review their procedures to allow more flexibility.

The GLS appealed and the Employment Appeal Tribunal (EAT) reviewed the tribunal’s decision. The EAT agreed with the tribunal that:

the provision, criterion or practice ("PCP") for the role – that of taking and passing the online SJP - served a legitimate aim. It was there to test a fundamental competency required of GLS trainees, namely the ability to make effective decisions;
however, the GLS’ means of achieving that aim were not proportionate. Accordingly, Ms Brookes’ complaint of indirect discrimination succeeded; and
the PCP had placed Ms Brookes at a particular disadvantage, by comparison with those non-disabled candidates who did not have Asperger's.

The EAT gave multiple reasons for rejecting the GLS’s appeal. They had known about her disability and the fact that the PCP would cause a group disadvantage (i.e. for all those with Asperger’s). Also, the tribunal had been right to assess Ms Brookes’ demeanour, background and experience to find out if she had suffered personal disadvantage. They concluded she fitted the profile of those that would be disadvantaged; she was intelligent and resourceful and had paralegal experience, which included decision-making. Expert evidence from Ms Brookes’ psychiatrist had confirmed that a multiple choice format test such as the PCT would be inappropriate for and disadvantage her. The GLS had not proposed any reason why she had failed the test other than her Asperger’s.

The adjustments Ms Brookes had proposed were reasonable – the GLS could have assessed her and others with Asperger’s by requesting answers in narrative.

Conclusion

This decision is a reminder to employers that unsuccessful job applicants can make a claim against employers if the applicant suffers discrimination during the process. It is important for employers to check that prospective candidates have the ability required for the job – but, in this case, a psychometric test was not the only way to achieve the required results.

Contact

For more information about disability discrimination contact Susan Mayall on 0161 684 6948 or make an enquiry.

Further information

For a full report on the decision, click here.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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