A job applicant with Asperger’s Syndrome has won an employment tribunal case after establishing her employer’s psychometric testing was discriminatory.
The Employment Appeal Tribunal (EAT) in the case of The Government Legal Service v Brookes established that the employer’s requirement for job candidates to sit a psychometric test was indirectly discriminatory.
The Government Legal Service (GLS) was recruiting lawyers in what the EAT described as, “a fiendishly competitive recruitment process”. Part of the recruitment process involved a multiple choice Situational Judgement Test.
The claimant, Terri Brookes, contacted the GLS and requested adjustments for this test because of her Asperger’s Syndrome. She asked for the test to be amended so she could provide short, written answers, as the multiple-choice feature of the test disadvantaged her.
Terri Brookes explains, “These tests ask people to predict the future. If you ask someone without Asperger’s what they’d do in a given situation, chances are they could give you an idea of what they may or may not do. I can’t do that”.
The GLS however informed Terri Brookes that an alternative test format was not available, although it was able to make (and did make) time allowances for her. She failed the test and a claim for indirect disability discrimination then followed.
The EAT agreed with the Employment Tribunal that there was:
- A ‘provision, criterion or practice’ (that all applicants take and pass the Situational Judgement Test);
- Which put a group of individuals at a disadvantage (those with Asperger’s Syndrome and others with autistic spectrum conditions) compared to individuals who did not share that characteristic in question (those without Asperger’s Syndrome or an autistic spectrum condition).
Whilst it was established that the GLS’ requirement for the test was to achieve a legitimate aim (to test the ability of its candidates to make effective decisions), it was held that GLS’ means of achieving that aim was not proportionate. The EAT held that there were other means available to the GLS to test the competency of its candidates; a psychometric test was not the only way to achieve this.
How you can avoid a similar issue
An individual’s ability to claim discrimination is not dependent on them having ‘employee’ or ‘worker’ status. Employers are under a duty not to unlawfully discriminate against individuals from the point it advertises a vacancy. This therefore means that job applicants are protected.
Employers should ensure that it asks candidates early on (e.g. on the application form) whether they require any reasonable adjustments. If a candidate indicates they do, then the employer should ask what is required and do what is reasonably possible to accommodate those adjustments. If in any doubt, there are lots of organisations that can provide guidance on adjustments for specific conditions (such as The National Autistic Society for those with Asperger’s).
If you would like to speak to James Simpson, surrounding any of the matters highlighted in the article, or for any other issues related to employment law, please contact her on firstname.lastname@example.org or 01494 478689.