Insisting on a multiple choice test found to be disability discrimination

The Employment Appeal Tribunal found that an organisation failed to make reasonable adjustments for a graduate job applicant with Asperger’s…

In The Government Legal Service v Brookes the Employment Appeal Tribunal found that the organisation failed to make reasonable adjustments for a graduate job applicant with Asperger’s syndrome. The use of a multiple choice psychometric test was not suitable for the candidate and she should have been permitted to take the test using a different format. Phil Allen discusses the details of the case and the importance of considering disability-related adjustments…

For those of you who rely upon multiple choice tests for assessing applicants, the Employment Appeal Tribunal has handed down an important Judgment in a successful disability discrimination claim. In the case of The Government Legal Service v Brookes the organisation’s use of a multiple choice psychometric test was found to be unlawful disability discrimination and that has been upheld on appeal. As it was found that this organisation should have allowed this individual (and others who had Asperger’s syndrome) to take the test in a different format, you may need to re-assess your use of such tests for applicants and consider carefully any requests for adjustments which you receive.

The facts

Ms Brookes failed the first stage of the recruitment process for lawyers at the Government Legal Service. She scored only 12 marks out of 22 in a psychometric test, when the pass mark was 14. The claim arose because Ms Brookes has Asperger’s Syndrome. Prior to taking the multiple choice test she contacted the organisation and requested adjustments on the grounds of her disability. She was told that an alternative testing format was not available, albeit the organisation did allow more time to take tests and would guarantee interviews for those with disabilities who passed all the tests. Part of the organisation’s rationale was that the use of multiple choice testing enabled marking to be done by a computer without human intervention or judgment, which was important in managing the thousands of applications received each year.

Ms Brookes succeeded in her claims for: indirect disability discrimination; failure to make reasonable adjustments; and disability-related discrimination. Those findings have been upheld by the EAT. Importantly the EAT rejected the organisation’s arguments that they were justified in what would otherwise be discrimination and that the adjustment sought were not reasonable. Whilst using the test had a legitimate aim – namely to test the fundamental competency required of trainees that they have the ability to make effective decisions - the means of achieving that was not proportionate. The impact of the compulsory test on Ms Brookes (and others who shared her disability) could be ameliorated by permitting that small number of people to take the test in a different format using narrative short written answers (so the test did not have to be scrapped or fundamentally modified).

The EAT rejected the organisation’s other arguments, including that some people with Asperger’s might actually find the test format suited them better, and concluded that:

“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 .., 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 [test].”

What does this mean for me?

If you rely on testing for applicants or internal promotions, you always need to be mindful of disability discrimination risks and consider carefully when adjustments are requested or required. Insisting that all candidates must undertake a multiple choice test will leave you vulnerable to a claim following this Judgment.

However this case reminds us of a broader principle, which is the importance of considering each requested disability-related adjustment in the context of the precise impact the individual’s own condition has upon them personally, and thinking creatively about what can be done to address any adverse impact. An intransigent hard line will always leave you vulnerable to a claim, even if you believe what you are testing is intrinsic to the job. Emphasising other adjustments which you would make, does not answer the request/claim. This applicant did not need the whole test to be scrapped and she did not need more time, she needed the format to be adjusted. Being able to complete a test in that format was not required for the role. As the skill could be tested in another way, the adjustment needed to be made.

Comment

Always remember that disability discrimination requires you to do things for those with disabilities which go beyond what you do for others. Whilst requested adjustments to a process can seem onerous, difficult or even unfair, particularly where the process is assessing a very large number of applicants, sometimes you will legally have to make those adjustments and go the extra mile for the applicant with a disability. Do speak to Weightmans if you are ever in doubt.

Share on Twitter