David Hoey warns of the risk posed by a “rigid and inflexible recruitment policy” given the wide scope of discrimination law.

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

In the case of Government Legal Service v Brookes, the Employment Appeal Tribunal upheld the decision of an Employment Tribunal that requiring an applicant with Asperger’s to sit a multiple choice test as part of a recruitment process was unlawful disability discrimination.

This issue arose as the Service has an annual graduate recruitment process. Thousands of applicants apply for around 35 roles each year. The first stage in the recruitment process is to sit an online multiple choice test. The purpose of this was to test decision making abilities. The Claimant asked that adjustments be made to the process which included changing the way in which answers were given. The Service advised her that it was not possible to adjust the test but other adjustments would be made, including in relation to the time to sit the test and the provision of an interview in certain situations. The Claimant scored 12 out of 22. As the pass mark was 14, her application was not taken forward.

Ms Brookes argued that the Service had indirectly discriminated against her by reason of her disability and that the treatment was unlawful because 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 Employment Tribunal upheld each of her claims. It found that there was a provision, criterion or practice (PCP), namely requiring all applicants to take and pass the online test. From the evidence before the Tribunal, it was clear that the PCP generally placed people who had Asperger syndrome at a particular disadvantage compared with those who did not have it. The evidence showed that the Claimant was herself put at that disadvantage since her impairment resulted in a lack of social imagination particularly in hypothetical scenarios. The Tribunal had to determine, however, whether the treatment was justified. There was a legitimate aim - testing a fundamental competency. However, the Tribunal found that the means used to achieve the aim were not proportionate. There was a less discriminatory means to achieve the outcome, namely implement the adjustments that had been proposed in this case which were found to be reasonable.

Following the claims being upheld, the Tribunal awarded £860 compensation and made a recommendation that the employer issue a written apology to the Claimant and review its recruitment procedures with a view to greater flexibility in the psychometric testing regime for disabled applicants.

The Employment Appeal Tribunal agreed with each of the Employment Tribunal’s findings and upheld each of the Claimant’s claims.

This is a reminder of the wide application of discrimination law. Employers need to ensure that proper consideration is given to all candidates at all stages of employment. The application of a rigid and inflexible recruitment policy could give rise to risks. Employers should ensure that proper consideration is given, at an early stage, as to potential adjustments that may be needed and that requests made of applicants are genuinely and fully examined. The Equality and Human Rights Commission’s Code provides good guidance to help employers in this area.

The Employment Team’s forthcoming seminar on discrimination law will look at some of the practical issues arising in this area. There are limited spaces available. To book please visit our Events page or email marketing@bto.co.uk

The full judgment can be found here.