The Employment Appeal Tribunal (‘EAT’) in Government Legal Service (‘GLS’) v Brookes held yes.
Ms Brookes applied for a training contract with GLS. As part of its recruitment process, she was asked to sit a multiple choice Situational Judgement Test (‘SJT’). Ms Brookes suffers from Asperger’s Syndrome and asked if she could provide short narrative answers instead. Her request was rejected and, consequently, she failed to achieve the necessary pass mark to proceed to the next round of the process. Ms Brookes brought the following claims against GLS:
- indirect disability discrimination
- discrimination arising because of her disability
- a failure to make reasonable adjustments.
The Employment Tribunal (‘ET’) found GLS had applied a provision, criterion or practice (‘PCP’) in requiring all candidates to undertake the SJT. Based on the medical evidence heard, the ET held that this PCP placed those suffering from Asperger’s at a disadvantage during the recruitment process. Ms Brookes’ condition meant that ‘she lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios, ’ she, therefore, should have been offered an alternative method of testing (such as submitting her answers in a short narrative form, as she had suggested). The ET also found that GLS could not objectively justify its decision to proceed without making the adjustments requested by Ms Brookes.
The EAT upheld the ET’s judgement stating that it was clear that Ms Brookes had suffered a disadvantage in comparison with applicants who did not share her condition. The EAT also upheld that GLS’ approach was not justifiable as a proportionate means of achieving a legitimate aim. The decision serves as a warning for companies who use psychometric testing procedures. The case did not set clear guidance on what may or may not be reasonable and many employers will argue that their method of testing is an appropriate way of assessing suitability for the role. Expect further case law on this topic.