In Brookes v the Government Legal Service, Brookes (B) has Asperger’s syndrome. She was required to sit a multiple choice Situational Judgment Test (SJT), as part of a recruitment process. B argued that the multiple-choice method of testing placed her at a disadvantage because of her Asperger’s and she should be allowed to answer the questions by providing short narrative written answers. The GLS refused B’s request because B could not show that the SJT put those with Asperger’s, nor her, at a particular disadvantage and even if it did, the requirement was justified as it identified the best candidates by testing their ability to make effective decisions.

The EAT upheld an ET’s decision that B had been subjected to indirect discrimination, a failure to make reasonable adjustments and discrimination because of something arising in consequence of B’s disability. The provision, criterion or practice (PCP) of applying the SJT to all applicants put people such as B at a disadvantage as a group compared to those who did not have Asperger’s. The PCP also put B at a disadvantage. B was a capable candidate who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark, but she had failed the SJT. The likely explanation was that B had Asperger’s and was placed under the additional difficulty of the multiple choice SJT format.

As to justification, while the PCP served a legitimate aim – the SJT tested a fundamental competency to make effective decisions – the means of achieving that aim were not proportionate as adjustments to the process could have been made; therefore, the indirect discrimination claim succeeded. The reasonable adjustments claim also succeeded on similar reasoning.  Finally, the claim for discrimination because of something arising in consequence of B’s disability stood or fell with the indirect discrimination claim, and accordingly that succeeded as well.

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