For a position where it is a fundamental competency to have the ability to make effective decisions, is an employer under a duty to make reasonable adjustments to a Situational Judgement Test for a job applicant who has Asperger’s Syndrome?
This question was recently considered by the Employment Appeal Tribunal where a job applicant was unsuccessful in her application for the role of a trainee solicitor.
Ms Brookes v the Government Legal Service
Ms Brookes is a law graduate from Sussex University having studied from 2008 to 2012. She was diagnosed with Asperger’s Syndrome in 2009. Adjustments were made for Ms Brookes at university and she achieved a 2:2 class degree.
In May 2015, the Government Legal Service published an application process for a trainee solicitor which consisted of three tests including a Situational Judgement Test (SJT). On 26 June 2015, Ms Brookes contacted the recruitment team at the Government Legal Service to request adjustments to the application process on the grounds of her Asperger’s, in particular the SJT as its multiple choice format put her at a disadvantage. Ms Brookes requested that she be allowed to give her answers as short narrative written answers instead. On 30 June 2015, the Government Legal Service responded to advise that an alternative test format was not available but that time allowances would be made. Ms Brookes was also guaranteed an interview if she passed all three tests.
The application process opened on 1 July 2015 and again Ms Brookes contacted the Government Legal Service to express concern that the psychometric testing would have a discriminatory impact on her. She took part in the SJT and was subsequently informed that she had not passed.
Ms Brookes brought claims for disability discrimination and failure to make reasonable adjustments.
The Employment Appeal Tribunal (“EAT”) found that the Government Legal Service had indirectly discriminated against Ms Brookes, had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability.
The EAT concluded that while the ‘provision, criterion or practice’ (PCP) served a legitimate aim, in that the SJT was there to test a candidates ability to make effective decisions, the means of achieving that aim was not proportionate. It acknowledged that the Government Legal Service did need to test the competency of a candidate’s ability to make effective decisions but that a psychometric test was not the only way to achieve this. Therefore, the PCP did put a people with Asperger’s at a particular disadvantage compared to those who did not have Asperger’s Syndrome and put Ms Brookes herself at a particular disadvantage because she has Asperger’s Syndrome.
During the recruitment process employers should always ask whether an applicant requires any reasonable adjustments. Employers are under a duty to make reasonable adjustments where there is a provision, criterion or practice (PCP) which puts a disabled applicant at a substantial disadvantage compared to a non-disabled person.
In each individual situation, employers should assess if their policies and practices are a proportionate means of achieving a legitimate aim and must be able to show that they have been reasonable in looking for a less discriminatory alternative in achieving any aim.
It is important that employers monitor and keep policies and practices up to date to avoid inadvertent indirect discrimination.
If you have any queries relating to disability discrimination, reasonable adjustments or any other HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.