The recent case of The Government Legal Service v Brookes is of particular interest to employers who use psychometric testing during the recruitment process. It is also a general reminder that applicants are protected against discrimination.

The facts

Ms Brookes has Asperger's syndrome and applied to join the Government Legal Service ('GLS') as a trainee lawyer. GLS requires all applicants to sit a psychometric test as part of the first stage in its highly competitive recruitment process. Candidates are required to respond to an online 'situational judgment test' which uses multiple-choice questions to test their ability to make effective decisions.

Ms Brookes contacted GLS prior to the test to ask whether an adjustment could be made to the process to allow her to provide short written answers to the questions. Asperger's causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. She was told that an adjustment was not possible although she would be given extra time for later tests should she get that far. Ms Brookes completed the test in its multiple choice format but did not score enough to allow her to proceed to the next stage of the recruitment process.

She claimed indirect disability discrimination; discrimination because of something arising in consequence of her disability; and that GLS had failed in its duty to make reasonable adjustments. Indirect disability discrimination claims are rare: the claimant must show that a provision, criterion or practice has been applied which placed them at a particular disadvantage and which cannot be justified (as being a proportionate means of achieving a legitimate aim). More detail on disability discrimination claims can be found on Workbox.

The decision

All three disability discrimination claims succeeded before both the employment tribunal and the Employment Appeal Tribunal. GLS was ordered to pay Ms Brookes £860 in compensation and issue her with an apology.

The tribunal also made a recommendation that GLS review its recruitment procedures for disabled candidates (the facts of this case pre-dated October 2015, when the tribunal's power to make wider recommendations for people other than the claimant was removed).

It was found that:

  • GLS had applied a provision, criterion or practice in requiring all applicants in their trainee recruitment scheme to take and pass an online multiple choice test.
  • After hearing medical advice, the tribunal found that the form of the test put people with Asperger's at a particular disadvantage compared to those who do not have Asperger's. This point was not appealed.
  • Both the tribunal and the EAT found that the multiple choice test put Ms Brookes at a disadvantage (based on medical evidence and an assessment of her demeanour, background and experience). Her Asperger's caused difficulties in imaginative and counterfactual reasoning in hypothetical scenarios and no alternative reason as to why she had failed the test had been put forward.
  • The multiple choice test served a legitimate aim of testing a fundamental competency required by GLS trainees.
  • However, requiring answers in a multiple choice format was not a proportionate means of achieving that aim because a reasonable less discriminatory assessment method was available. The competency of candidates with Asperger's could have been properly measured through short written answers.
  • Although allowing written answers would have created logistical problems for GLS (extra expense; subjective assessment rather than computer marking) these did not outweigh the obligations owed to Ms Brookes.

In practice

Where a disabled candidate would be put at a disadvantage by the format of a recruitment test, there may be an obligation to adjust the process (e.g. allowing additional time; providing an alternative test or method of responding). For further guidance, see our Workbox section on shortlisting. If you wish to discuss a particular case, please contact the Brodies' employment team.