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Requiring applicant with Asperger's to sit psychometric test ruled as discrimination

By Louise McAloon, partner, employment law

The use of psychometrics testing by employers in recruitment and selection processes will now require further consideration in light of the recent Employment Tribunal Decision (The Government Legal Service v T Brookes EAT) in which the tribunal held that the employer had discriminated against a job applicant with Asperger's Syndrome on grounds of her disability by requiring her to sit an online multiple choice 'situational judgment test' (SJT) as the first stage in a competitive recruitment process for lawyers wishing to join the Government Legal Service.

The Government Legal Service is a large national organisation which introduced psychometric testing in 2010 as part of its recruitment practices and was said to receive several thousand applications for about 35 places each year.

Ms Brooks had requested adjustments in relation to the process by reason of her Asperger's Syndrome. She was told that an alternative test format was not available but that time allowances were, as well as a guaranteed interview scheme, but only for those who passed all the multiple choice SJT and two other subsequent tests.

Ms Brooks did not pass the test, scoring 12 points out of 22. The pass mark was 14.

In what was described as a "fiendishly competitive recruitment process", Ms Brooks argued that because of her Asperger's she was unlawfully disadvantaged by the multiple choice method of testing and that the respondent should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers.

The employer argued that Ms Brooks could not show that the testing method put her or those with Asperger's or other forms of Autistic Spectrum Condition (ASC) at a particular disadvantage, and even if it did, the requirement was objectively justified as a proportionate means of achieving the legitimate aim of recruiting the best candidates by testing their ability to make effective decisions.

In June 2016, the initial Employment Tribunal determined that the employer had indirectly discriminated against Ms Brooks, it had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability. Following an appeal in March this year the Employment Appeals Tribunal upheld the finding of disability discrimination.

It noted that Ms Brooks was 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 SJT.

The tribunal was right to ask itself why, and was entitled to find that a likely explanation was 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.

Whilst the legislation under which the claim was brought, the Equality Act 2010, does not apply in Northern Ireland and English case law is not legally binding here but of persuasive authority, the broadly comparable provisions under the Disability Discrimination Act 1995 would likely have resulted in a finding of disability discrimination had the complaint arisen in this jurisdiction.

The tribunal ordered compensation totalling £860, recommending that the employer issue a written apology to Ms Brooks and review its procedures in relation to people with a disability applying for employment.

Where appropriate, multiple choice questions should be replaced with questions requiring a short written answer.

Whilst assessments using a written answer narrative format are likely to be more expensive and time consuming as they cannot be automatically marked by a computer and require human resources and judgment in the marking process, employers will need to adjust their current recruitment practices if they wish to avoid a complaint of disability discrimination.

Employers should always seek legal advice to ensure compliance with discrimination legislation.

Louise McAloon is a partner specialising in employment law in Worthingtons Solicitors, Belfast. For advice please telephone 028 9043 4015 or email louise@ worthingtonslaw.co.uk

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