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In the Government Legal Service v Brookes [2017] UKEAT 0302/16, the Employment Appeals Tribunal (EAT) held that the claimant, who suffered from Asperger’s syndrome, experienced disability discrimination by being made to sit a multiple-choice ‘situational judgement test’, in what the EAT called a “fiendishly competitive recruitment process.”

The Government Legal Service (GLS) is a large organisation serving the legal needs of the government with 35 trainee solicitors appointed every year from a pool of thousands of applicants. The recruitment process encompassed several stages, including psychometric testing that involved a multiple-choice quiz to test candidates’ ability to make effective decisions.

Ms Brookes asked GLS if she could answer the questions in a short, narrative form rather than by multiple-choice questions, because of her Asperger’s syndrome. GLS told Ms Brookes that this was not possible and she went on to fail the test by two points.

Indirect disability discrimination

Ms Brookes then brought claims for indirect disability discrimination, discrimination because of something arising in consequence of her disability and a failure to make reasonable adjustments.

The EAT agreed with the Employment Tribunal and upheld all of Ms Brookes claims, finding that it would have been a reasonable adjustment to allow Ms Brookes to answer the questions in a narrative form, that the requirement to take the test in its unaltered form was unfavourable treatment and that, although the requirement to take the test to ensure competency was a legitimate aim, the means of achieving that aim were not proportionate in Ms Brookes’ case. The EAT also took into account that there were only a small number of applicants who suffered from Asperger’s and of those who took the situational judgement test, only one applicant passed.

In appealing, GLS did not contest that they had applied a provision, criterion or practice that put people with Asperger’s at a disadvantage but disputed that Ms Brookes experienced the same advantage.

The EAT disagreed and noted that the tribunal was correct to ask itself why Ms Brookes had failed the test when she was a capable woman who had achieved a law degree with the benefit of adjustments.

Proportionality assessment

This case highlights the importance for employers to consider whether the chosen means of achieving a legitimate aim is the only possible way of doing so when faced with a request to make an adjustment. If not, an employer risks being exposed to claims for discrimination.

For a disabled employee or applicant who suffers a detriment because of an employer’s failure to make a reasonable adjustment, the EAT confirmed that the correct approach in determining these cases is to apply a proportionality assessment which will involve a tribunal asking itself why exactly the detriment occurred.

For more information about any of the issues raised in this article or on employment articles in general, contact Jonothan Scollen in the Leeds Employment team by emailing [email protected] calling 0113 368 7583.