The requirement to have job applicants sit a multiple choice test as part of the recruitment process may be discriminatory. In the case of Government Legal Service (Respondent) v Brookes (Claimant) the EAT upheld that it was discriminatory to require a job applicant with Asperger syndrome to sit a multiple choice test as part of the recruitment process.
The GLS requires applicants to sit an online multiple choice test as part of the graduate recruitment process. MS Brookes suffers from Asperger syndrome and upon the realisation that she would be required to sit a multiple choice test contacted the GLS in order to request an adjusted format. This request was refused, however, she was advised that if she wished she could be granted an extended period of time to sit the test. The GLS stated that should she pass this test and a subsequent two tests then she would automatically qualify for an interview.
Ms Brookes failed the multiple choice test. Subsequently she raised claims in the Employment Tribunal for indirect disability discrimination under S.19 of the Equality Act 2010, discrimination because of something arising in consequence of her disability under S.15 and a failure to comply with the duty to make reasonable adjustments in S.20.
The Employment Tribunal found that the provision, criterion or practice in this instance was the requirement to pass the online multiple choice tests. Ms Brookes’ representative led medical evidence which highlighted that those who suffered from Asperger syndrome were placed at a particular disadvantage. The Respondents offered no alternative explanation as to why Ms Brookes failed the test.
The Respondents stated in their defence that if the requirement was found to be discriminatory then it was a proportionate means of achieving a legitimate aim, namely testing a fundamental competency required of their trainees.
The Tribunal found in favour of the Claimant in that the means of achieving that aim were not proportionate because there was the less discriminatory alternative of the adjustments proposed by B.
The tribunal considered these adjustments to be reasonable, so the claims under S.19 and S.20 were both upheld. The claim under S.15 also succeeded: the requirement to take the test in its unaltered form amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim for the reasons found in respect of indirect discrimination.
The Respondent appealed the decision and the case went to the Employment Appeals Tribunal. The EAT upheld the first instance decision finding that the GLS failed in its duty to make reasonable adjustments.
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