- Harriet Calver
Employers using multiple-choice psychometric testing in recruitment should act with caution following the recent case of Government Legal Services (GLS) v Brookes.
The Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal (ET) that a job applicant with Asperger’s syndrome was discriminated against by being required to sit a multiple-choice test as part of a competitive recruitment process.
Ms Brookes was a law graduate who suffered from Asperger’s Syndrome. She applied for a position at the GLS as a trainee solicitor. At the first stage of the recruitment process, she was asked to sit a multiple-choice situational judgment test (SJT). Ms Brookes was concerned that such a test would put her at a significant disadvantage compared to other candidates due to her Asperger’s. She therefore contacted GLS’s recruitment team prior to sitting the SJT to explain this and ask that a reasonable adjustment be made for her; that she be permitted to provide short narrative answers to the test, rather than answering by multiple choice.
Ms Brookes was informed by the GLS that an alternative test format was not available, but that additional time may be given for tests at a late stage in the recruitment process, provided that all three entry level tests had been passed. Ms Brookes took the SJT and was unsuccessful, scoring two points under the pass mark, meaning that she was unable to proceed any further with her application.
Ms Brookes brought Employment Tribunal proceedings against the GLS claiming disability discrimination. She claimed that:
1) She had been indirectly discriminated against because the SJT placed her at a particular disadvantage compared to other applicants who did not have Asperger’s and there was no justification for this discrimination;
2) GLS had failed to make any reasonable adjustments to the SJT to enable her to overcome her disadvantage; and
3) She had been discriminated against because of something arising in consequence of her disability.
The ET upheld all Ms Brookes’ complaints of discrimination, relying on medical evidence to support its conclusions. Notably it did not consider that the discrimination could be objectively justified, because while the GLS had a legitimate aim for setting the SJT (testing the competency of the applicant’s decision-making), the ET did not consider that the means by which the GLS did this were proportionate. In fact, the ET concluded that the GLS’s refusal to amend the SJT was based on principle, rather than practical grounds and in its view, the GLS could have made an adjustment to the SJT and still been able to adequately measure Ms Brookes decision-making ability.
The ET ordered the GLS to pay compensation to Ms Brookes in the sum of £860 and recommended that they also provide her with a written apology.
The GLS appealed the decision to the EAT and the EAT agreed with the ET’s findings. It observed that Ms Brookes 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. It agreed with the ET’s view that a likely explanation for not passing the test was the fact that she had Asperger’s and the additional difficulty that would place her under due to the multiple-choice format of the SJT.
What is the impact of this ruling for recruiters?
This decision does not mean that recruiters should not use multiple-choice tests as a recruitment tool, but instead highlights the need to take special care if a job applicant is disabled.
If a recruiter is aware that an applicant is or may be disabled or that he or she requires reasonable adjustments during the recruitment process, then the sensible approach is to implement these adjustments, unless there is a less discriminatory alternative available.
There will, of course, be times when it is simply not practical to make the requested adjustments, for example, in the case of the multiple-choice test, if the adjustments could not be made without significantly reducing the effectiveness of the test. However, it is important to remember that the threshold for objective justification is very high, as demonstrated by this case, and therefore relying on this defence without very solid grounds is risky.
A particular difficulty for recruiters is where an applicant suffers from a “hidden” or “invisible” disability which is not self-evident, especially on first meeting, for example, Asperger’s Syndrome. The issue with this is that while an employer/recruiter cannot be liable for direct discrimination, failure to make reasonable adjustments and certain other types of discrimination, unless they are aware or should have been aware of the applicant’s disability, the same “knowledge” principle does not apply to indirect discrimination.
In light of the potential risks for recruiters and employers, it is advisable to tackle the issue head on and include a section in the application form asking the applicant: (a) whether they have a disability; and b) whether they will require any reasonable adjustments during the recruitment process. In this way, the recruiter or employer will be aware of their obligations early on and if the applicant responds positively, they can take the appropriate steps to protect the applicant from any possible discrimination.
Harriet Calver is Associate at Winckworth Sherwood LLP