19th May 2017

Discrimination: When using multiple choice tests as part of an application process, are employers under a duty to make adjustments for a job applicant with Asperger’s?

At a glance

The Employment Appeal Tribunal upheld an Employment Tribunal decision that a job applicant with Asperger’s had been subjected to indirect discrimination when their request to complete a test in narrative form, rather than as multiple choice, was rejected. Tessa Robinson from RB’s Employment Team comments on this case further.

In the case of Government Legal Services v Brookes, B, a law graduate with Asperger syndrome, applied for a role as a trainee solicitor with the Government Legal Services (GLS).  The first stage in the recruitment process required all applicants to sit an online ‘situational judgement test’ (SJT). This test was in the form of multiple choice questions and was designed as an objective means of testing candidates’ ability to make effective decisions.  B contacted the GLS ahead of the recruitment process and requested that she be allowed to submit her answers to the SJT by short narrative form as opposed to the standard multiple choice format. The GLS declined this request, but informed her that she would be given time allowances and that if she passed all 3 initial tests, she would be guaranteed an interview (which was not guaranteed for all applicants simply by passing the 3 initial tests). B then took the SJT and failed by 2 marks. Her application did not progress. She therefore brought claims against the GLS for indirect discrimination and a failure to make reasonable adjustments.

The Employment Tribunal found that the GLS had applied a provision, criterion or practice (PCP) that required all applicants in the trainee recruitment scheme to take and pass the online SJT. It concluded (having heard medical evidence) that the PCP generally placed people who had Asperger syndrome at a particular disadvantage compared with those who did not have it. The tribunal further concluded that it put B at a particular disadvantage since her Asperger’s resulted in a lack of social imagination and caused difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. No alternative explanation as to why B failed the SJT was advanced by the GLS, but the GLS did state that additional cost would be involved in marking narrative responses as this would no longer be able to be automatically marked by a computer. The PCP pursued a legitimate aim, namely the testing of a fundamental competency required by GLS trainees, but the means of achieving that aim were not proportionate. The tribunal ruled that there were less discriminatory means of achieving the aim – namely the further reasonable adjustments which were proposed by B. B’s claims therefore succeeded.

The GLS appealed against the ruling that B had experienced the particular disadvantage (but not against the finding that the PCP placed people with Asperger’s at a disadvantage).  The GLS contended that the medical evidence that was placed in front of the tribunal was held to be “inconclusive”.  This included previous recommendations that had been made by B’s psychiatrist that, given her medical condition, multiple choice format tests would not have been appropriate for her degree course.  However, the EAT stated that simply because the evidence was inconclusive, did not mean that it was unreliable or that it should be disregarded. It ruled that it had been open to the tribunal to draw its own conclusion from the evidence placed before it. There was therefore no error with the tribunal’s reasoning.

The EAT concluded that the decision-making powers of the small number of candidates with Asperger’s could properly have been measured by requiring them to answer the SJT in narrative format. Despite the fact this would incur a small additional cost for the GLS as the test could not be automatically marked by a computer, this was a small inconvenience and so the adjustment was proportionate.

What does this mean for employers?

This case is a timely reminder to employers about their duty to make reasonable adjustments and how cost should rarely be a considered factor. Although the GLS had put in place two adjustments for the job applicant, as this case shows, the most applicable reasonable adjustments must be implemented, even if there is a slight cost implication, otherwise employers will be liable for discrimination claims.

If you would like to understand more about the implications of this case and how you can avoid similar problems, please contact Tessa Robinson by emailing Tessa or by calling her on +44 (0)1293 558553.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

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