Competency tests for recruitment - Beware of discrimination claims

In the recent case of Government Legal Service v Brookes, the EAT has upheld a decision that, in requiring a candidate with Asperger’s syndrome to sit a multiple choice test as part of its recruitment process, Government Legal Service (‘GLS’) subjected the Claimant to indirect disability discrimination, discrimination because of something arising as a consequence of her disability and failed to make reasonable adjustments.

In this case, the candidate in question was applying for the post of Trainee Solicitor, for which the GLS receives thousands of applications each year. As part of the initial stage of the recruitment process, applicants were required to sit a 'situational judgement test' online, which was designed to test the candidates' ability to make decisions effectively. The Claimant was a law graduate who suffered with Asperger’s syndrome.  She contacted the GLS prior to the completion of the test and requested adjustments, specifically, she wanted to submit answers to the questions in a short narrative form rather than in the required multiple choice format. She was informed this was not possible, but she would be permitted additional time to complete the test.  The Claimant sat the test and scored 12 out of 22, however the pass mark was 14 and therefore her application did not progress further. The Claimant brought claims of indirect disability discrimination, discrimination because of something arising in consequence of her disability and a failure to make reasonable adjustments.

The Tribunal upheld the Claimant’s claims. Having considered medical evidence, it concluded that the requirement to sit the test (the ‘provision, criterion or practice’ or ‘PCP’ applied by GLS) placed people who had Asperger’s syndrome at a disadvantage compared with those who did not have the condition. The Tribunal held that the GLS had a legitimate aim in applying the PCP, which was to test competency of the potential Trainees, but it considered that the means of achieving that aim were not proportionate because there was the less discriminatory option that could have been utilised in the Claimant’s case, which was the suggestion made by the Claimant of submitting answers to the questions in a short narrative form.  The Tribunal held this suggestion amounted to a reasonable adjustment that should have been made for the Claimant.

GLS appealed against the decision but the Employment Appeal Tribunal refused to interfere with the Tribunal’s decision, stating that: 'The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the [test], but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger's, and the additional difficulty that would place her under due to the multiple choice format of the [test]”.

This case serves as a useful reminder about the laws against disability discrimination and the requirement to make reasonable adjustments where a particular provision or practice of the employer places a disabled employee at a disadvantage, as it did in this case. Where employers use recruitment tests such as the one in this case, it is sensible to assess requests for adjustments to those tests on a case by case basis, and to consider the individual circumstances of the person requesting those adjustments.  Where that person is placed at a particular disadvantage as a result of a test, or the way in which it is performed, and no action is taken to alleviate this disadvantage, an employer could be found to have discriminated against the employee.

For further advice on this or any employment law issue, contact a member of the Chattertons Employment team.