Partner Sue Dowling, in our Employment Law team, explores anti-discrimination laws which apply even before an employee commences work.
As most employers will be aware, anti-discrimination laws apply even before an individual commences work – it is open to a “rejected” candidate to complain that they were treated less favourably during the recruitment process, for example during an interview. In summary, the right not to be discriminated against is relevant to all aspects of “a job” and an employer cannot deny an applicant a role for discriminatory reasons without justification.
In the recent case of The Government Legal Service v Brookes UKEAT/0302/16 the Employment Appeal Tribunal (EAT) considered the appeal relating to a claim by Ms Brookes who successfully argued that she should have been afforded a more flexible form of multiple choice test, during her trainee solicitor application process at GLS, due to her Asperger’s syndrome. GLS rejected Ms Brookes’ request for an alteration to the multiple choice format, which would have allowed her to submit short written answers instead. GLS said that an alternative format was not available but that extra time might be given for later tests, if the first round was passed.
The employment tribunal upheld Ms Brookes’ claims for indirect disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments. The indirect discrimination argument was based on the fact that the requirement to sit a multiple choice test was a “provision, criterion or practice” that placed Ms Brookes at a particular disadvantage and GLS had not shown a convincing reason why they could not allow the submission of short written answers.
The EAT has now agreed with the original decision and dismissed GLS’ appeal. GLS argued that the tribunal’s decision was perverse and that its findings of fact relating to Ms Brookes having been placed at a disadvantage were not supported by medical evidence. The business also appealed on the basis that the issue of justification had not been considered properly and that GLS’ focus on core competency was inextricably linked with a multiple choice test. The EAT concluded that the tribunal’s reasoning was not flawed and that medical advice from Ms Brookes’ psychiatrist had recommended that multiple choice format would not be appropriate for her degree course, given her Asperger’s. On the balance of probabilities, the EAT held that her failure to pass GLS’ multiple choice test was due to the format of the questioning. The EAT also disagreed that the tribunal had not adopted a proportionate approach to whether GLS could justify its method of testing – it concluded that a multiple choice format was not the only way in which they could have tested core competency.
In terms of remedy, Ms Brookes was awarded compensation by the tribunal and GLS was ordered to provide an apology. The tribunal also made a recommendation for GLS to review its procedures for recruiting disabled candidates, to provide greater flexibility in the psychometric testing regime. However, this claim was originally lodged before October 2015 – since then, the power for tribunals to make recommendations can only relate to the claimant’s particular situation and does not allow for wider recommendations to the company’s workforce (i.e. for the benefit of persons other than the claimant).
Psychometric testing is a common part of the interview process for many jobs and this decision means that businesses may need to review their method of testing, to see whether their aims of testing can be achieved via less discriminatory means. In this case, providing short answers to the questions rather than ticking a single box would not only have involved extra time and costs for the company (e.g. in terms of non-computerised marking) but arguably, would have meant a different type of competency being tested – it is difficult to say how inextricably linked psychometric testing is to the core competency being examined. Certainly, in this case the EAT emphasised that an employer must look at ways to be as flexible as possible to accommodate disability and it is an important reminder that applications and interviews relating to disabled individuals will need careful consideration.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
