Recruitment: Disability Discrimination and Adjustments for Candidates
16th May, 2017
Was a job applicant who suffered from Asperger’s Syndrome indirectly discriminated against by being required to sit a multiple choice “Situational Judgement Test” (SJT) as part of a recruitment process?
The EAT in The Government Legal Service v Brookes  UKEAT/0302/16 concluded that she was.
The Applicant had applied for a job at Government Legal Service (GLS) and was informed that she would be required to take part in the SJT as part of the recruitment process. The Applicant requested that she be allowed to answer the questions in the form of short narrative written answers.
GLS refused arguing that the Applicant could not show that the form of testing method put those with Asperger’s, or the Applicant herself, at a particular disadvantage and further to this, the requirement was objectively justified as a proportionate means to achieving a legitimate aim.
The Applicant failed the test and claimed disability discrimination.
The ET found that GLS had indirectly discriminated, failed to comply with the duty to make reasonable adjustments, and had treated her unfavourably because of something arising in consequence of her disability.
It concluded that the provision, criterion or practice (PCP) to require candidates to undergo the SJT put people such as the Applicant, as a group, at a disadvantage compared with those who did not have Asperger’s. Further to this the ET found that the PCP put the Applicant at such a disadvantage. The ET went on to consider whether the PCP could be objectively justified to serve a legitimate aim. It concluded that whilst the PCP served a legitimate aim, to ensure recruitment of persons of the right calibre, the means of achieving that aim were not proportionate and such a test was not the only option available to GLS. The claim relating to failure to make reasonable adjustments succeeded on similar reasoning and the claim for discrimination because of something arising in consequence of a disability, the ET found, would be either successful or unsuccessful with the indirect discrimination claim. Accordingly, it was successful.
GLS appealed, however, the EAT agreed with the ET’s decision and its reasoning.
This recent EAT decision demonstrates the importance of assessing your recruitment processes on a case by case basis. It also illustrates that if an applicant has a disability and asks for an adjustment to your business’ recruitment process which is reasonable then you should consider it and if needed take advice on proceeding. Should you need guidance regarding your recruitment practices and whether a request for an adjustment to your recruitment process is reasonable, please contact our Employment Department.
You might also be interested in...
6th July, 2018
When a business invests in its community it deserves praise – but it must go beyond that, writes Helen Watson, a trustee at Claire House and partner at Aaron and Partners Solicitors. Corporate social responsibility (CSR) is the link between a company and the community in which it operates. As a trustee on charity boards including Claire House... Read More »
4th July, 2018
Stuart Haynes, Corporate & Commercial Partner and IAG Global Board Member, reports on IAG Global – Wiesbaden held 14th to 17th June 2018 Stuart Haynes (IAG Global Board Member) Stuart Scott-Goldstone and Nick Clarke attended the recent IAG Global meeting in Wiesbaden which was held at the Grand Hotel Nassauer Hof from 14th – and 17th July 2018 The meeting... Read More »
6th June, 2018
Rhiannon Edwards, Solicitor in the Wills, Trusts and Tax department, discusses the recent judgement in the case of Nield-Moir v Freeman, where the High Court has ordered one of two daughters of Colin Birtles, who has died, to take a DNA test to prove paternity as part of an inheritance dispute In an unusual case, the High Court... Read More »