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This article was published on July 10th, 2017
The Government Legal Service v Brookes
Psychometric testing has long been a way of assessing the aptitude of job applicants. But this tick-box test, marked by computers, doesn’t necessarily provide a level playing field.
Ms Brookes has Asperger’s Syndrome. She applied for a job as a trainee lawyer in the Government Legal Services (GLS). The first stage of the recruitment process was a multiple-choice test, known as a Situational Judgment Test (SJT). Ms Brookes asked if she could respond by giving short narrative written answers. (The tribunal went on to find that, as a person with Asperger’s, she lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios.) GLS refused.
Ms Brookes took the test but didn’t do well enough to move on to the next stage of the recruitment process.
The Employment Appeal Tribunal upheld the tribunal’s decision that she had been indirectly discriminated against. The ‘provision, criterion or practice’ (PCP) that all applicants in the trainee recruitment scheme take and pass the online SJT put people such as Ms Brookes at a disadvantage compared to those who didn’t have Asperger’s. That discrimination could not be justified. While the PCP served a legitimate aim (to test fundamental competencies), the means of achieving that aim were not proportionate.
It was also found that GLS had failed in its duty to make reasonable adjustments. Ms Brookes had been treated unfavourably because of something arising in consequence of her disability.
The big message here is to build some flexibility into your recruitment process to deal with people who may be disadvantaged by your ‘standard’ procedure. Even if the medical evidence on this isn’t conclusive, the safest course would be to implement some other way of evaluating the applicants’ capabilities. That applies even if no other person with that disability has asked for the adjustment; different people may be affected in different ways.