Multiple choice test subjected job applicant with Asperger’s to indirect disability discrimination

Multiple choice test subjected job applicant with Asperger’s to indirect disability discrimination

In Government Legal Service v Brookes, the EAT has upheld the decision of an employment tribunal that, in requiring a job applicant with Asperger syndrome to sit a multiple choice test at the first stage of its recruitment process, the GLS subjected her to indirect disability discrimination and discrimination because of something arising in consequence of her disability. The Appeal Tribunal also upheld the finding that, by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options, the GLS failed in its duty to make reasonable adjustments.

The GLS recruits around 35 trainee solicitors each year and receives thousands of applications for these posts. As the first stage in recruitment, all applicants are required to sit an online ‘situational judgement test’ (SJT). This poses multiple choice questions as a means of testing candidates’ ability to make effective decisions. B, a law graduate with Asperger syndrome, contacted the GLS ahead of the 2015 recruitment round and requested adjustments to the SJT by being allowed to submit her answers to the questions in a short narrative form. She was told that an alternative test format was not available but that time allowances were, as well as a guaranteed interview scheme for those who passed the SJT and two subsequent tests. B took the SJT and received a score of 12 out of 22. The pass mark was set at 14, with the result that her application went no further. She subsequently brought claims in the employment tribunal of indirect disability discrimination under S.19 of the Equality Act 2010, discrimination because of something arising in consequence of her disability under S.15 and a failure to comply with the duty to make reasonable adjustments in S.20.

The tribunal hearing B’s claims found that the GLS had applied a provision, criterion or practice (PCP) of requiring all applicants in the trainee recruitment scheme to take and pass the online SJT. Having heard expert medical evidence, it concluded that the PCP generally placed people who had Asperger syndrome at a particular disadvantage compared with those who did not have it. It found that B was put at that disadvantage since her Asperger’s results in a lack of social imagination and causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios, and no alternative explanation as to why she failed the SJT was advanced by the GLS. The PCP pursued the legitimate aim of testing a fundamental competency required of GLS trainees, but the means of achieving that aim were not proportionate because there was the less discriminatory alternative of the adjustments proposed by B. The tribunal considered these adjustments to be reasonable, so the claims under S.19 and S.20 were both upheld. The claim under S.15 also succeeded: the requirement to take the SJT in its unaltered form amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim for the reasons found in respect of indirect discrimination. 

On appeal, the tribunal’s finding that the GLS had applied a PCP which placed people with Asperger’s at a disadvantage was not challenged, but the GLS disputed that B had experienced the same disadvantage. However, the EAT held that the tribunal’s reasoning was beyond reproach: ‘The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT’. The EAT further upheld the tribunal’s reasoning in respect of proportionality under Ss.15 and 19 and reasonableness under S.20. In particular, the tribunal had been entitled to reject the GLS’s submission that this was a case where the method of testing and the competency itself were inseparable and effectively the same thing. The decision-making powers of the small number of candidates with Asperger’s could properly have been measured by requiring them to answer the SJT in narrative format.

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