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The Government Legal Service v Brookes
The Employment Appeal Tribunal (EAT) held in this case that a job applicant with Asperger's Syndrome was discriminated against by being required to sit a psychometric test.
The Government Legal Service (GLS) was recruiting lawyers in what the EAT called "a fiendishly competitive recruitment process". The process included a multiple choice Situational Judgement Test (SJT). The Claimant contacted the GLS and requested adjustments on the ground of her Asperger's Syndrome. She was informed that an alternative test format was not available, although time allowances were. After she completed the SJT and failed, she claimed disability discrimination.
The employment tribunal concluded that a 'provision, criterion or practice' (PCP) (being the requirement that all applicants take and pass the SJT test) put a group people such as the Claimant at a particular disadvantage compared to those who did not have Asperger's Syndrome. It went on to find that the PCP put her, in particular, at such a disadvantage.
Further, while the PCP served a legitimate aim, the means of achieving that aim were not proportionate to it and, accordingly, the Claimant’s claim of indirect discrimination succeeded. The claim for failure to make reasonable adjustments also succeeded on similar reasoning.
The EAT agreed. The employment tribunal was entitled to conclude the PCP placed the Claimant at a particular disadvantage because she has Asperger's Syndrome. Additionally, her psychiatrist had made previous recommendations that a multiple choice format test would not be appropriate for her.
The EAT further held the employment tribunal adopted the correct approach when carrying out a proportionality assessment, but acknowledged that whilst the GLS needed to test the core competency of ability of its candidates to make effective decisions; a psychometric test was not the only way to achieve this.
In Practice
It is perhaps ironic that government’s own legal service fell afoul of the Equality Act 2010, but this case shows that it is quite easy for workers to claim indirect discrimination in relatively common situations. Employers should always be careful and seek advice if they think any PCP they are thinking putting in place may put someone at a disadvantage.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul, Kate or Andrew will be happy to discuss it with you.
