< Back to Need to Know - Issue 3 2017

Multiple choice recruitment test was discriminatory

Thu 11 May 2017

In the case of Government Legal Service v Brookes, the Employment Appeal Tribunal (“EAT”) has upheld the decision of an Employment Tribunal (“ET”) that a job applicant with Asperger’s syndrome was discriminated against by being required to sit a multiple choice ‘Situational Judgment Test’ (“SJT”) as the first stage in a competitive recruitment process for the position of trainee solicitor.

The Claimant contacted the GLS’s recruitment team and requested adjustments to the trainee solicitor recruitment process on the ground of, among other things, 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 three required tests; that is, the SJT and two other subsequent tests.

Before completing the tests, the Claimant expressed concern and complained about the discriminatory impact on her as a result of the psychometric testing.  She took part in the SJT, which did not have a time limit, and was informed soon afterwards that she had not passed. She scored 12 points out of a possible 22, below the pass mark which, after the testing process had been completed, was set at 14.  As a result, she was not able to proceed with her application any further and she brought claims of discrimination against the GLS.

The ET decided that the GLS had: 1) indirectly discriminated against the Claimant; 2) failed to comply with its duty to make reasonable adjustments; and 3) discriminated against her because of something arising in consequence of her disability.

The EAT upheld all these findings.  It observed that the Claimant appeared to be 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, but had not quite managed it.  It agreed with the ET’s view that a likely explanation for not passing the test could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT. 

It would have been a defence to the claims of discrimination if GLS had been able to objectively justify the requirement for the Claimant to pass the SJT or if adapting the test would not have been reasonable.  The EAT upheld the ET’s decision that, while the test served a legitimate aim (to test a fundamental competency required of GLS trainees, namely the ability to make effective decisions), the means of achieving that aim were not proportionate. The GLS could have measured the Claimant’s decision-making ability by adapting the test so, rather than answering with multiple choice, she was able to answer in narrative format.

This decision does not mean that employers should not use multiple choice tests as a recruitment tool, but if they are on notice that an applicant may be disabled and require adjustments, they should consider very carefully whether the test and method of testing can be objectively justified (for which the threshold is normally high) or if there is a less discriminatory alternative available.  

For more information on this article please contact the Employment Team.    

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