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  • Overview

    It is more and more common for employers to use aptitude tests in order to select candidates when recruiting. These tests can be particularly useful and relevant in the sifting and selection process.

    Presumably so long as you ask everyone who is applying for the role to undertake the test this cannot possibly expose you to any risk, can it?

    Unfortunately it can as has been found in the recent Employment Appeal Tribunal (EAT) decision in The Government Legal Service v Brookes.

    The Government Legal Service (GLS) devised a multiple choice Situational Judgement Test (SJT) which it required every applicant to complete. There was a minimum pass mark that needed to be obtained before the candidate progressed to the next round.

    Ms Brookes was a law graduate who had Asperger’s syndrome. Before taking the SJT, she requested that reasonable adjustments be made to accommodate her condition, namely that she be permitted to answer in short narrative form instead of answering in the multiple choice format. Ms Brookes informed the assessors that her Asperger’s negatively impacted her ability to answer the multiple choice questions. Her request was denied.

    Ms Brookes did not achieve the required pass mark to progress and subsequently brought a discrimination claim against the GLS. The GLS denied that the SJT put Ms Brookes at a disadvantage and argued that even if it did, the requirement to do the test was objectively justified as a proportionate means of achieving the legitimate aim of recruiting the best candidates.

    The ET found that the GLS had indirectly discriminated against Ms Brookes. It found that the GLS had failed to comply with the duty to make reasonable adjustments and as a result, Ms Brookes had been treated unfavourably because of something arising in consequence of her disability.

    GLS appealed but EAT agreed with the ET’s ruling and stated that its findings were unassailable and correct in law.

    This case highlights the need for employers to be aware of the difficulties that some applicants may face because of their disability. Even if the purpose of the test is to obtain the best candidates, employers must, where necessary, make reasonable adjustments to accommodate applicants with disabilities and be willing to adopt a more flexible approach to ensure that particular candidates are not disadvantaged in any way.

    The GLS were ordered to pay compensation, send a written apology and it was recommended that their procedures be reviewed, with a view to making their testing regime more flexible.

    It is recommended that employers consider their current recruitment process and assess whether or not disabled people would be disadvantaged in any way. If so, employers need to be prepared to be more flexible in making reasonable adjustments, otherwise they could find themselves on the wrong end of a discrimination claim.

    If you would like to discuss any of the information included above, please contact George Liley from our Employment team on 01892 701154 or by emailing george.liley@ts-p.co.uk. Alternatively, please contact Nick Hobden, Head of Employment on 01892 701326 or by emailing nick.hobden@ts-p.co.uk.

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