Multiple choice test resulting in an indirect disability discrimination claim
In a recent case involving the Government Legal Service, the Employment Appeal Tribunal (EAT) upheld the decision that a job applicant with Asperger's syndrome suffered indirect disability discrimination when she was required to take a multiple choice test as part of the application process despite requesting an adjustment to be made to cater for her disability.
The Claimant, Ms Brookes, was a law graduate who applied for a training contract with the Government Legal Service (GLS) in July 2015. On learning that she had to pass a multiple choice test in order to progress to the next round, she made a request of the GLS to allow her to take the test in a narrative format because her Asperger's syndrome made it difficult for her to perform well in a multiple choice exam .
GLS refused this request on the grounds that the test could not be substituted with a written Q & A format because the aim was to test the applicants' competency in making effective decisions, and in particular, their ability to work under pressure and make a clear-cut decision in ambiguous situations.
Ms Brookes sat the test and failed it. She filed a claim for (1) indirect disability discrimination, (2) discrimination arising from disability, and (3) discrimination for failure to make reasonable adjustments.
Despite inconclusive medical evidence, the Employment Tribunal (ET) upheld Ms Brookes' complaints: it was sufficient to show that Ms Brookes could or was likely to have been put at a disadvantage by the requirement to sit a multiple choice test. GLS' aim was legitimate but it was not justified: the means by which it was trying to reach its aim were not proportionate and a reasonable adjustment could have been made by allowing Ms Brookes to write narrative responses.
GLS sought leave to appeal. The EAT dismissed the appeal and upheld the ET's findings in relation to all the allegations of discrimination:
indirect disability discrimination: the requirement for Ms Brookes to take the multiple choice test put her at a particular disadvantage compared to candidates who didn't have Asperger's;
discrimination arising from a disability: Ms Brookes was treated unfavourably because of something arising as a consequence of her disability and this treatment was not proportionate in relation to the aim;
discrimination for failure to make reasonable adjustments: despite the duty on employers to make reasonable adjustments to help disabled job applicants, GLS refused to accommodate Ms Brookes' request to take the test in a different format.
GLS was ordered to pay compensation to Ms Brookes and to provide an apology. Further, the EAT made a recommendation that GLS review its existing recruitment policies to ensure that they provide greater flexibility so as to accommodate people with disabilities.
What you can do to protect your business from a claim
If you use multiple choice or other written tests in your recruitment process, you should put in place measures to accommodate candidates who may otherwise be disadvantaged. For example:
Train your employees who are involved in the recruitment process to deal with requests from candidates with disabilities, e.g. Asperger's syndrome, dyslexia and/or dyspraxia.
If you receive a request to make an adjustment, treat the request seriously and follow it through. Take legal advice if necessary.
Find out what reasonable adjustment can be made that would ensure a level playing field for the particular candidate: this could be allowing extra time or adjusting the format of the test.
If you cannot make an adjustment to the test, consider giving it to the candidates at a later stage in the recruitment process, e.g. after an oral interview, so that you have an opportunity to test the candidate by other means as well.
Adjust the pass-mark for candidates with a disability that affects their performance in the test.