24 May 2017
Under the Equality Act 2010 (“the Act”), it is unlawful to treat a worker who has a disability unfavourably due to anything arising as a consequence of their disability. Under the same Act, it is unlawful indirect discrimination for an employer to apply a provision, criterion or practice (“PCP”) irrespective of any disability which puts, or would put, disabled individuals at a disadvantage. The same is applied if the individual claiming the discrimination is put at a disadvantage, if an employer is unable to evidence ‘a proportionate means of achieving a legitimate aim’. It is common for employers to assess applicants by using various forms of tests. Recently, the Employment Appeal Tribunal (“EAT”) has examined whether the use of multiple choice testing for recruitment applicants was unlawful disability discrimination. The facts of the case were that the Government Legal Service (“GLS”) recruit a number of trainee solicitors on an annual basis. These roles are in high demand, and each year GLS receives thousands of applications. To aid in the assessment of the applicants, at the first stage of the process the GLS ask applicants to complete an online test, which presents a number of multiple choice questions. This aims to demonstrate the candidate’s ability to make effective decisions. Ms Brookes had Asperger Syndrome and approached GLS to ask whether this multiple choice test could be adjusted, so that she could submit her answers to the questions in a short narrative rather than answer by multiple choice. The GLS refused this request on the basis that an alternative test format was not available, but time allowances were. Ms Brookes took the test and scored 12 out of 22. As the pass mark was 14, her application was not progressed any further. Ms Brookes then issued claims at the Employment Tribunal for disability discrimination because of something arising out of her disability, indirect discrimination and failure to comply with their duty to make reasonable adjustments. The Tribunal agreed with Ms Brookes and upheld all of her claims. The Tribunal outlined that the GLS had provided a PCP of making their recruitment applicants take this multiple choice test and this did place individuals who suffered from Asperger Syndrome at a disadvantage. The Tribunal also found that it was not a proportionate means of achieving a legitimate aim, as there was a less discriminatory alternative to the test, like the proposed adjustment requested by Ms Brookes, which the Tribunal considered reasonable. Therefore, they also found that the GLS had failed in their duty to make reasonable adjustments and gave unfavourable treatment, meaning that discrimination arose as a result of Ms Brooke’s disability. The GLS appealed this decision to the EAT. On appeal, the GLS advanced that the PCP of the multiple choice test did not in fact put Ms Brookes at a disadvantage. However, the EAT refused to interfere with the Tribunal’s decision as they considered it was entitled to come to the decision Ms Brookes was at a disadvantage, given that she was a capable individual who was able to obtain a law degree with the benefit of adjustments and had come very close to the pass mark of the test. Therefore, the Tribunal were entitled to determine that the reason for not passing this test was connected to the difficulties she experienced due to her Asperger Syndrome when taking this multiple choice test. The EAT also agreed with the Tribunal’s decision that the proposed alternative method of taking the test by Ms Brookes was reasonable as the competency under assessment could have been measured in a narrative format and not only multiple choice. Accordingly, the EAT dismissed the GLS’s appeal. This case highlights the requirement on employers to reasonably consider and investigate accommodating an individual’s proposal for an adjustment which takes it outside their usual working practice in order to avoid discrimination on the grounds of disability.
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