16th May, 2017
Recruitment: Disability Discrimination and Adjustments for Candidates
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.
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