01st June 2017

Reasonable Adjustments for Recruitment

In the recent case of The Government Legal Service v Brookes UKEAT/0302/16/RN, a question arose as to whether an employer would have to amend its process of subjecting candidates to an online multiple-choice Situational Judgment Test (SJT) for a disabled candidate with Asperger’s?

The Facts

The Claimant was a legal graduate in the first year of her LPC and had applied for a legal trainee solicitor vacancy with the Government Legal Service (GLS). As part of the application process, applicants are required to complete an online Situational Judgment Test (SJT), which was used by the prospective employer to condense the number of applications for consideration.

As a result of the Claimant’s condition, she asked GLS if they would allow her to submit her answers in short narrative form, however, this request was declined. GLS advised that an alternative test format was not available. Notably, the Claimant’s psychiatrist had previously made recommendations during her university courses that a multiple choice format test would not be appropriate for her.

The Claimant subsequently took the test, achieving a score of 12 out of 22, however the pass mark to progress to the next stage was 14.

The Claimant sought to pursue a claim for indirect disability on the basis that the SJT had placed her at a disadvantage due to her condition. This is because her condition was likely to have restrictions on her ability to counter-factual reasoning on hypothetical scenarios.

The Decision

In the first instance, the Tribunal held that the assessment had the legitimate aim of testing a competency required for the role, however, this could not be considered as proportionate, as an alternative method (as suggested by the Claimant) had been suggested and not made available.

GLS appealed against the finding of indirect discrimination on grounds of disability.

The EAT therefore concluded:

  1. The test placed the Claimant’s condition placed her at a disadvantage compared to non-disabled candidates;
  2. The prospective employer had failed to adapt the test in light of the Claimant’s condition; and
  3. GLS had indirectly discriminated against the Claimant on grounds of disability due to its failure to comply with its duty to make reasonable adjustments. Whilst GLS needed to test the competency of the candidates, it was determined that a psychometric test was not the only way to achieve this.

The EAT made a recommendation that GLS should issue the Claimant with a written apology and review its recruitment process for disabled candidates in order to make the process more flexible. The Claimant was also awarded £860 in compensation.

Note for Employers

Employers should, therefore, be mindful of various factors which may subsequently influence what they consider to be an appropriate assessment and whether or not further adjustments may need to be made, particularly in relation to disabled job applicants. It is not sufficient to apply a theory of one box fits all.

*All information is correct at the time of publishing

Julie Duane

Napthens LLP – Employment Law Advocate

Julie is one of our Employment Law Specialists from Napthens Solicitors. Read more

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