Was a job applicant with Asperger's Syndrome discriminated against by being required to sit a psychometric test?
Yes, held the EAT in The Government Legal Service v Brookes. 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). Brookes 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). 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 Brookes at a particular disadvantage compared to those who did not have Asperger's Syndrome. It went on to find that the PCP put Brookes, 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, Brookes' 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 Brookes at a particular disadvantage because she has Asperger's Syndrome. Additionally, her psychiatrist had made previous recommendations (in relation to her university courses) 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.
With thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary via Daniel Barnett’s Employment Law Bulletin.
