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The recent case of The Government Legal Service v. Brookes is of particular interest to U.K. employers who use psychometric testing during the recruitment process. It is also a general reminder that applicants are protected against discrimination.
Ms. Brookes has Asperger's syndrome and applied to join the Government Legal Service (GLS) as a trainee lawyer. (Brookes' full name was not mentioned in the decision.) GLS requires all applicants to sit a psychometric test as part of the first stage in its highly competitive recruitment process. Candidates are required to respond to an online "situational judgment test" that uses multiple-choice questions to test their ability to make effective decisions.
Brookes contacted GLS prior to the test to ask whether an adjustment could be made to the process to allow her to provide short written answers to the questions. Asperger's causes difficulties in imaginative and counter-factual reasoning in hypothetical scenarios. She was told that an adjustment was not possible although she would be given extra time for later tests should she get that far. Brookes completed the test in its multiple choice format but did not score enough to allow her to proceed to the next stage of the recruitment process.
She claimed indirect disability discrimination; discrimination because of something arising in consequence of her disability; and that GLS had failed in its duty to make reasonable adjustments. Indirect disability discrimination claims are rare: the claimant must show that a provision, criterion or practice has been applied which placed them at a particular disadvantage and which cannot be justified (as being a proportionate means of achieving a legitimate aim).
All three disability discrimination claims succeeded before both the employment tribunal and the Employment Appeal Tribunal. GLS was ordered to pay Brookes £860 in compensation and issue her with an apology.
The tribunal also made a recommendation that GLS review its recruitment procedures for disabled candidates (the facts of this case pre-dated October 2015, when the tribunal's power to make wider recommendations for people other than the claimant was removed).
It was found that:
Where a disabled candidate would be put at a disadvantage by the format of a recruitment test, there may be an obligation to adjust the process (e.g. allowing additional time; providing an alternative test or method of responding).
Laurin Campbell is a trainee solicitor for Brodies LLP in Glasgow, U.K. © 2017 Brodies LLP. All rights reserved. Reposted with permission of Lexology.
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