Did an employer have to adjust its recruitment process for an applicant with a disability?
Yes, said the Employment Appeal Tribunal in a recent case, upholding the Tribunal’s decision that a job applicant with Asperger’s syndrome had been discriminated against in the recruitment process applied by the Government Legal Service.
This case highlights that employer’s need to make reasonable adjustments for individuals with disabilities when requiring job applicants to undergo psychometric tests.
Under the Equality Act 2010, it is unlawful to discriminate against someone because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or believe, sex and sexual orientation. These are called “protected characteristics” and you are protected from discrimination on these grounds during employment but also when you are applying for jobs, in both the application and selection process.
There are many different types of unlawful discrimination defined under the Equality Act 2010, but for the purpose of this case, the focus is on “indirect discrimination”, “discrimination arising from a disability” and discrimination arising from a failure in “the duty to make reasonable adjustments” for a disabled person.
Indirect discrimination is when an employer or prospective employer applies a policy, rule or working practice that puts you and others who share the protected characteristic at a particular disadvantage compared to others who do not have that protected characteristic AND that policy, rule or practice cannot be justified as being genuinely necessary for the business.
Discrimination arising from disability occurs when you are treated unfavourably because of something arising in consequence of your disability rather than the disability itself. A failure to make reasonable adjustments occurs where, broadly speaking, you are put at a disadvantage by a policy, rule or working practice in comparison to persons who are not disabled, and the employer/prospective employer fails to make reasonable adjustments to avoid the disadvantage.
Ms Terri Brookes was diagnosed with Asperger’s syndrome in 2009 whilst studying for a degree in law. In 2015 she applied for a trainee solicitor post with the Government Legal Service (GLS) which is the organisation that provides legal services to the government and various government agencies.
When Ms Brookes applied for the job, she asked the GLS to make reasonable adjustments on the grounds of, among other things, her Asperger’s syndrome.
The GLS informed Ms Brookes that an alternative test format was not available but they made adjustments by giving time allowances and by giving a guaranteed interview to those who passed the 3 required tests.
One of the tests Ms Brookes was required to sit was a multiple choice Situational Judgement Test (known as SJT). This was an online test with no time limit. Before taking the test, Ms Brookes told the GLS that she was concerned about the format and her ability to take part due to her disability.
Despite this, she took the test and did not pass.
The SJT test was a multiple choice test to which there were objectively right or wrong answers to the questions, marked by a computer. Ms Brookes argued that because of her Asperger’s she was disadvantaged by the multiple-choice test and a reasonable adjustment would have been for the GLS to allow her to answer in short narrative written answers.
The GLS argued that there was no evidence to justify making the adjustment or that the multiple-choice method put Ms Brookes or others with Autistic Spectrum Conditions at a disadvantage. They also argued the defence that the method of testing was justified as a proportionate means of achieving the legitimate aim of recruiting the best candidates.
The Employment Tribunal decided that:
– the GLS had indirectly discriminated against Ms Brookes by imposing on her a requirement to undertake the SJT test because this put Ms Brookes at a particular disadvantage compared to those who did not have Asperger’s syndrome; and
– although the assessment had the legitimate aim of testing a candidate’s competency, the means used were not proportionate and an alternative assessment method was available.
The Employment Tribunal further held that the GLS had failed in its duty to make reasonable adjustments to their recruitment process and Ms Brookes had been treated unfavourably because of something arising in consequence of her disability.
The Employment Tribunal awarded £860 compensation to Ms Brookes and ordered that the GLS issue a written apology. The Employment Tribunal also ordered GLS to review their recruitment procedures and flexibility for testing those with disabilities.
The GLS appealed against the decision.
The Employment Appeal Tribunal rejected the GLS appeal and found that the Employment Tribunal had reached their decision correctly. The Tribunal had been correct to find that requiring applicants to undertake the psychometric test could put some people with Asperger’s syndrome at a disadvantage and that it had actually put Ms Brookes at a disadvantage. The EAT said Ms Brookes was intelligent and capable and the Tribunal was entitled to find that the likely reason for why she had not performed better was because of her Asperger’s.
Points to note
This case highlights the obligations that employers have to potential employees and applicants for employment from the very earliest stage of the application and recruitment process, as well as the need for disabled applicants to consider raising any difficulties they may have with any aspect of the recruitment process as early as possible.
In this case, the issue could have been simply resolved by allowing Ms Brookes to take the test and be assessed in a different format. Ms Brookes told the GLS about an alternative assessment method and yet the GLS did not make this reasonable adjustment.
Although the GLS had a system in place for reasonable adjustments, it was a ‘one size fits all’ approach to adjustments which clearly did not take into consideration individual conditions.
The outcome is important if you are applying for a job and the recruitment processes put you at a disadvantage for a reason that relates to your disability. The prospective employer may have prescribed alterations that it makes for disabled applicants, but the recruiter may still be in breach of its duty to make reasonable adjustments, if these adjustments will not remove the particular disadvantage to you and others with a similar condition.
What action can you take if you are in a similar situation?
1. If you want to apply for a job and you believe you may need adjustments, consider informing the prospective employer about your disability and what adjustments you may need. You are under no obligation to inform a prospective employer that you have a disability when you are applying for a job and you may worry that disclosing this during the early recruitment stages will mean you may be subjected to discrimination. However, unless an employer is informed of your disability, there is no duty on them to make reasonable adjustments.
2. If you are required to undergo a test/assessment process which you feel will put you at a disadvantage in comparison to other candidates because of your disability, inform the recruiter of this as early on as possible.
3. Consider whether any adaptations can be made to the test/assessment that would overcome the particular disadvantage or if there is an alternative assessment method available that can test whether you have the skill set required. Inform the recruiter of these. This is what Ms. Brookes did and it helped the Tribunal conclude that the SJT test was not the only way of testing a candidate’s competency.
4. It may help to ask your GP or specialist, if you are seeing one, for a letter or report explaining how the test/assessment or any particular aspect of it is unsuitable because of your disability and to propose specific adjustments. Provide this letter/report to your prospective employer in support of your request for reasonable adjustments.
5. Seek advice if a recruiter is unwilling to make the adjustments proposed. You can contact us for a free initial discussion on 01722 01983 89700, 023 8098 2006
Employment Appeal Tribunal – The Government Legal Service v Brookes
This article was written by Miranda Amos, Employment Solicitor. Miranda is based at our Salisbury office and advises clients throughout the UK. You can contact Miranda by email, [email protected]
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.