Discrimination law is aimed at protecting those with the relevant protected characteristics at all stages in employment – from recruitment to post-employment termination.

In the recent case of Government Legal Services v Brookes the Employment Appeal Tribunal upheld an Employment Tribunal decision that a job applicant with Asperger’s syndrome suffered unlawful disability discrimination because of the multiple choice test she was required to sit as part of the recruitment process.

The GLS had an annual recruitment process, the first stage of which required applicants to sit an on-line multiple choice test on decision making ability.  The Claimant asked for adjustments to be made to the process (including changing the way in which answers were given).  She was advised it was not possible to adjust the test although other adjustments were made including the time allowed to sit the test. Ms Brookes scored below the pass mark and her application was not progressed.

She argued GLS had indirectly discriminated against her by reason of her disability and the treatment was unlawful . . . . the failure to progress her application amounted to discrimination because of something arising in consequence of her disability. She also argued that there had been a failure to make reasonable adjustments.

The ET upheld each of her claims. It found that there was a provision, criterion or practice (a PCP) namely, requiring all applicants to take and pass the on-line test.  The Tribunal accepted the PCP generally placed those with Asperger’s at a particular disadvantage compared with those who did not have the condition.  The evidence showed Ms Brookes was put at that disadvantage since her impairment resulted in a lack of social imagination particularly in hypothetical situations.  The Tribunal still had to decide if the treatment was justified.  There was a legitimate aim – testing of fundamental competence however, the Tribunal felt the means to achieve the outcome was not proportionate. GLS could have achieved the aim in a less discriminatory way namely, by implementing Ms Brookes proposed adjustments which were deemed to be reasonable.

Following the decision Ms Brookes was awarded compensation of £860.00 and the Tribunal recommended GLS issue a written apology to the Claimant and review its recruitment procedures to introduce flexibility in psychometric testing for disabled applicants.  On appeal the EAT agreed each ET finding.

The decision provides a reminder of the wide application of discrimination law.  Employers must give proper consideration to all candidates at all stages.  Applying a rigid and inflexible recruitment policy could give rise to risks.  Proper consideration should be given at an early stage to potential adjustments that may be needed and requests made by applicants should be fully considered.  The Equality and Human Rights Commission’s Code of Practice provides employers with helpful guidance on this and other discrimination areas.