LEGAL CORNER: Use of multiple choice test discriminatory towards candidate with Asperger’s Syndrome

23rd Jun 2017

E.A.T ruled in favour of Asperger’s syndrome sufferer Terri Brookes who claimed Government’a Legal Service psychometric test was discriminatory (Photo: Twitter/@TIBrookes)

Employers looking to recruit new employees always need to be aware to the possibility that their chosen methods may put certain people at a disadvantage – as was the situation that arose in the Government Legal Service (GLS) v Brookes UKEAT/0302/16.

Ms Brookes was a 33-year-old law graduate who suffered from Asperger’s Syndrome. She applied to the GLS for a position as a trainee solicitor. All applicants were required to sit an online situational judgment multiple choice test (SJT) as the first stage.

Ms Brookes contacted the GLS and informed them that she suffered from Asperger’s Syndrome Government Legal Service; she asked that she be able to answer the test with short form answers as her disability meant that she “lacked social imagination and would have difficulty in imaginative and counter-factual reasoning in hypothetical scenarios”. The GLS informed her that she was not allowed to take the test in an alternative format, but would be allowed to take extra time to complete it. Ms Brookes made further contact with the GLS to repeat her concerns about her ability to take the SJT but to no avail. She, therefore, sat the test, but only scored 12 out of 22; the pass mark was set at 14.

Ms Brookes, therefore, brought a claim in the Employment Tribunal (ET) alleging that she had been indirectly discriminated on the grounds of her Asperger’s Syndrome, that she had been discriminated against because of something arising out of her disability, and that the GLS had failed to make reasonable adjustments for her. In order to demonstrate that she had been indirectly discriminated, Ms Brookes had to show that the GLS applied a ‘provision, criterion or practice (PCP)’ to all candidates that placed her at a substantial disadvantage compared with a person who was not disabled. The ET also had to be satisfied that the PCP was not a ‘proportionate means of achieving a legitimate aim’.

The ET agreed with Ms Brookes that the PCP, in this case, was the requirement to sit and pass an SJT and that the medical evidence suggested that this placed her at a substantial disadvantage compared with someone who did not suffer from Asperger’s Syndrome. The ET accepted that the GLS had a legitimate aim, in that it sought to test a competency required of lawyers to make effective decisions, however, they did not accept that the chosen means were proportionate, as the GLS could have accepted Ms Brooke’s proposal to answer the questions in a different way. Her complaint of indirect discrimination, therefore, succeeded, as did her other claims. She was awarded £860 compensation, and the ET made a recommendation that the GLS issue a written apology to Ms Brookes and review its procedures in relation to people with a disability applying for employment, with a view to greater flexibility in the psychometric testing regime.

The GLS appealed to the Employment Appeal Tribunal (EAT). They first argued that although there was evidence that those with Asperger’s Syndrome might be put at a disadvantage by having to sit the SJT, there was insufficient evidence that Ms Brookes herself had been disadvantaged. The EAT considered the evidence before the ET and noted that they had been 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 EAT decided that the ET 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 Syndrome and the additional difficulty that would place her under due to the multiple choice format of the SJT. The GLS also argued that the ET was wrong to reject its argument that the use of the SJT was proportionate. The EAT found that the ET had correctly analysed the issue and that it would have been feasible to allow Ms Brookes to have answered the same questions in a slightly different manner.

This case reminds all employers of two important points: first, that it needs to be mindful of how its chosen method of selection might impact on certain applicants with particular disabilities, and secondly, when a particular issue is raised with them and an adjustment is requested, an employer must carefully consider the viability of the request and the impact that it might have. Whilst not all adjustments will be considered to be reasonable in the circumstances, a careful assessment process is required in order to establish this.

Safia Tharoo, Barrister – 42 Bedford Row, London

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