Our final case this week is about disability discrimination, reasonable adjustments and psychometric testing done during recruitment.
The question in this case was:
Is it discriminatory to make an applicant with Asperger’s syndrome sit a situational judgment test as part of the recruitment process?
Ms Brookes, the Claimant, applied for a position at the Government Legal Service, the Respondent. The Claimant was a law graduate who had been diagnosed with Asperger’s syndrome. People with Asperger’s syndrome tend to have difficulty with social interaction and non-verbal communication and often use unusual or uncommon language when communicating.
The Claimant was applying for a position of trainee solicitor, a position the Respondent received several thousand applications to fill 35 positions. To help sort the candidates, the Respondent made all candidates sit a multiple choice situational judgement test. All candidates were required to pass the judgement test, and two further tests, to be guaranteed an interview.
As an Asperger’s sufferer, the Claimant requested that she provide her answers in written form rather than sitting the multiple-choice test. The Respondent rejected this as the multiple-choice layout meant that the tests could be marked by a computer which was not only time and cost effective, but also removed human error when marking. The Respondent offered the Claimant an unlimited time to sit the test instead.
The Claimant sat the test and did not score enough marks to advance to the next stage of the recruitment process. She began ET proceedings for indirect discrimination and failure to make reasonable adjustments.
The ET accepted the claim, it found that the Respondent had indirectly discriminated against the Claimant by making her sit the test and not allowing her to do written answers amounted to a failure to make reasonable adjustments. The Respondent was ordered to pay the Claimant compensation as well as issue a formal apology and review its recruitment processes. The Respondent appealed and the EAT rejected the appeal.
The takeaway point
Yes, making a disabled job applicant sit a test that someone with their disability will struggle with is discriminatory. Case law on this area states employers should adjust the process to compensate for the difficulties some disabled applicants have taking psychometric tests and this case follows the trend.