Beware of Discrimination Pitfalls in Recruitment

In the case of Government Legal Services v Brookes [2017] UKEAT/0302/16/RN, the Employment Appeal Tribunal (EAT) considered whether a job applicant with Asperger’s Syndrome was discriminated against due to the requirement to sit a psychometric test as part of the recruitment process.

Ms Brookes, who suffered from Asperger’s Syndrome, applied to be a trainee lawyer at the Government Legal Service (GLS). Part of the recruitment process involved completing a psychometric test. Ms Brookes requested adjustments be made to the test to allow her to answer in short narrative form as the multiple choice method of testing meant that she was disadvantaged due to her condition. The GLS refused the request, instead giving her extra time to complete the questions. Ms Brookes did not pass the assessment and so was unsuccessful in her application. She brought a claim for indirect disability discrimination, among other claims.

The EAT held that the requirement to sit a psychometric test was a ‘provision, criterion or practice’ (PCP) which placed Ms Brookes at a particular disadvantage compared to non-disabled candidates. The EAT agreed with the GLS that the use of psychometric testing had a legitimate aim, but held that the use of such testing was not proportionate as an alternative method was available to them and had indeed been suggested by Ms Brookes (the presentation of her answers in short narrative format). In the circumstances, the EAT upheld the first instance tribunal’s finding that the GLS had indirectly discriminated against Ms Brookes.

This case highlights the importance for employers to ensure they have appropriate policies to support disabled employees throughout their employment, as well as candidates at the recruitment stage.