The Employment Appeals Tribunal (EAT) has disallowed an appeal by the Government Legal Service (GLS) against a Tribunal judgement which claimed that its exercise of asking job applicants to complete a multiple choice assessment was discriminatory.
Terri Brookes was asked to take the multiple-choice test as part of the first stage of her application to the Government Legal Service (GLS), whose recruitment process is infamously competitive. Brookes, who has Asperger’s Syndrome, reasoned that permitting applicants with an Autistic Spectrum Condition to use short written answers would be a fair and sensible modification, as the wrong or right character of pre-scripted answers left her in an unfavourable circumstance that reduced her chance of success. However, the GLS vetoed this, contending that even if it was possible to attest that the multiple choice questions hindered the chances of candidates with an Autistic Spectrum Condition, the testing was a fair process of evaluating candidates.
Both the original employment tribunal and the EAT found the GLS’ stance to be inappropriate. Whilst they recognized that the testing served a genuine resolve to make the recruitment process more efficient, the procedures were fundamentally disproportionate to the desired outcome. The courts found that GLS had indirectly discriminated against the candidate, had been unsuccessful at making reasonable adjustments that took into account her disability, and had treated her adversely.
Emma O’Leary, employment lawyer at Employment Law Advisory Services, called it a “significant case for HR” because psychometric testing methods were predominant across all industries. O’Leary said employers needed to make sure they could prove that their recruitment processes were a “proportionate means” of achieving a legitimate aim, particularly if their practices were likely to put a particular group at a disadvantage.
Karen Jackson, managing director at discrimination specialist law firm didlaw, added: “The case shows the dangers of rigid thinking by employers when considering reasonable adjustments during recruitment. Flexibility and a willingness to find solutions are essential in avoiding unlawful discrimination.”
This ruling, which is one of the first at EAT to uphold a judgement of indirect disability discrimination, offers a clear sign to employers of the necessity to take into account reasonable adjustments, as well as the limitations of psychometric testing in relation to neurodiversity, especially where that neurodiversity may be a Protected Characteristic. Employers are now urged to reassess their recruitment practices.
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