Making Adjustments for Disabled Employees and Job Applicants
Disability as a Protected Characteristic
The Equality Act 2010 (the “Act”) protects, amongst others, employees and job applicants who have a disability, which is a protected characteristic under the Act. The Act considers a person to have a disability if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Some conditions such as cancer and multiple sclerosis, for example, fit clearly into this category, whilst other conditions, for example Asperger’s syndrome, dyslexia, and other mental conditions such as depression, are not self-evident and may only impact or become evident in particular situations. Employers need to be particularly careful about making adjustments for these less ‘obvious’ disabilities, as the Government Legal Service (GLS) recently discovered to its detriment.
In the case of Government Legal Service v Brookes UKEAT/0302/16, the Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal (ET) that by requiring a job applicant with Aspergers to take a multiple choice test as part of a job application, the Government Legal Service (GLS) was liable for indirect discrimination.
The Facts of the Case
Ms Brookes, a law graduate, applied for a job with the GLS whose recruitment processes are highly competitive. Job applicants are required to complete and pass a multiple choice situational judgment test in order to progress to interview stage. Prior to sitting the test Ms Brookers contacted the GLS and asked for permission to provide her answers in short written form, as multiple choice questions would disadvantage her as somebody with Aspergers. The GLS refused her request and instead offered extra time for tests at a later stage providing that Ms Brookes pass the preliminary round. Ms Brookes did not pass the situational judgment test and was therefore unsuccessful in her job application.
Ms Brookes brought a claim to the ET for disability discrimination. She claimed that the multiplice choice situational judgment test put her at a particular disadvantage compared to other candidates who did not have Aspergers, that this was unjustified and that GLS had not made any reasonable adjustments to the test to enable her to overcome her disadvantage.
Indirect Disability Discrimination
Under the Act indirect discrimination occurs where an employer applies a provision, critierion or practice (PCP) to everyone in the same way but the effect of it is to particularly disadvantage a disabled person. It is possible for the employer to justify indirect discrimination if it can show that it is a “proportionate means of achieving a legitimate aim”, which essentially means that it is fair and reasonable and that all alternative arrangements were considered.
The ET and EAT Rulings
The ET upheld Ms Brookes’ claim of disability discrimination and considered that her requested adjustment was reasonable. Medical experts provided evidence that multiple choice tests generally place those with Aspergers at a particular disadvantage compared to people who do not have Aspergers, as people with Aspergers often lack social imagination. The GLS could not provide an alternative reason as to why Ms Brookes failed the situational judgment test. The ET concluded that although in setting the multiple choice test the GLS was pursuing a legitimate aim of testing the job applicants’ decision-making skills, the means of achieving this aim were not proportionate. The GLS could have granted Ms Brookes’ reasonable request for adjustment.
The ET ordered the GLS to pay Ms Brookes compensation amounting to £860 and recommended that it make her a written apology. The EAT dismissed the GLS’ subsequent appeal, recognising that whilst the GLS needed to test the job applicants’ skills, the way in which it did this (psychometric testing) was not an exhaustive method.
Recommendations for Employers
This case demonstrates how important is it for employers to consider and make reasonable adjustments for disabled employees and job applicants. Employers are advised to ask on application forms whether the applicant requires any reasonable adjustments to be made and if so, to enquire for more details from the applicant. If the applicant requires an adjustment which is practicable and does not make the recruitment procedure less effective, then employers should consider making that adjustment. The law does not require employers to make tests easier for disabled people, and thereby lower recruitment standards for disabled people.