In the Government Legal Service v Brookes the Employment Appeal Tribunal (EAT) has confirmed the earlier decision of the Employment Tribunal, that a candidate required to carry out a psychometric test as part of a recruitment process, was placed at a particular disadvantage because she had Asperger’s syndrome. Simon deMaid, Employment Law Partner with Howes Percival comments.

This case raises a number of issues regarding selection in interview processes for candidates who may be affected by a condition recognised (as a disability) under the Equality Act. It also highlights the need for employers to review processes for internal promotion and assessment for employees similarly diagnosed with medical conditions that may place them at a disadvantage.”

In the Government Legal Service v Brookes, Ms Brookes (who has Asperger’s syndrome) applied for a position as a lawyer in the Government Legal Service. As part of a process, which the EAT described as “fiendishly competitive”, Ms Brookes was required to undertake a multiple choice situational judgment test (SJT). Ms Brookes argued ahead of taking the test that she should have been allowed to answer the questions in the SJT in the form of short narrative written answers rather than by virtue of multiple choice answers where such answers to the questions were either objectively right or wrong with no room for subjective consideration by the examiner or marker. Ms Brookes was unsuccessful with her application to the Government Legal Service and brought claim of indirect discrimination (Section 19 of the Equality Act 2010) and of discrimination by failure to make the reasonable adjustment (Section 20).

The pass mark for the SJT was 14 and Ms Brookes achieved a pass mark of 12. The Employment Tribunal found Ms Brookes to be an “intelligent, resourceful and capable” candidate and clearly committed to a career in the Government Legal Service and when she came so close to reaching the required mark of 14, the Tribunal was at liberty to ask why she had not passed, and was entitled to find that likely explanation could be found in the fact that Ms Brookes had Asperger’s syndrome and the difficulty that condition would place her under whilst taking a multiple choice format test. (As an interesting aside, Ms Brookes at both first instance and in the EAT gave evidence on her own behalf, represented herself in the Employment Tribunal and in turn represented herself in the Employment Appeal Tribunal).

The Employment Tribunal found that the Respondent had indirectly discriminated against Ms Brookes and that they had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of her disability. At the Employment Tribunal it was accepted by the Government Legal Service that Asperger’s syndrome was a disability at the relevant time and that the provision, criterion or practice (PCP) was also agreed, namely a requirement for all applicants in the trainee recruitment scheme to take and pass the online SJT. The Employment Tribunal considered the question of whether the PCP put people such as Ms Brookes “as a group” at a disadvantage compared to those who did not have Asperger’s syndrome and concluded that it did. There was no challenge to that by the Government Legal Service but the Employment Tribunal went on to find that the PCP put Ms Brookes specifically at a disadvantage. That finding was challenged in the EAT.

The Tribunal also considered the question of justification and concluded that while the PCP served a legitimate aim, (their aim being that the SJT was there to test a fundamental competency required of trainees entering into the Government Legal Service, the requirements of which included the ability to make effective decisions) then the SJT as a means for achieving that aim was not proportionate to it. For that reason the complaint of indirect discrimination succeeded in the Employment Tribunal as did the claim for discrimination arising from the failure to make reasonable adjustments. The above reasoning adopted by the Tribunal was described by the EAT as “impeccable and beyond reproach.

As stated above the EAT considered that the reasoning of the Employment Tribunal in the first instance was “cogent and properly supported of the conclusion it reached and as a result the Employment Tribunal was entitled to conclude that the PCP placed Ms Brookes at a particular disadvantage because of her Asperger’s syndrome.

What is important to this case is the fact that there was substantial medical evidence raised before the Employment Tribunal that Ms Brookes had earlier employed the services of a psychiatrist who had treated her since her university days and had previously made recommendations to Ms Brookes University that a multiple choice format test would not be appropriate for her. Ms Brookes had also referred to this prior to being required to embark on the psychometric testing with the Government Legal Service. The EAT found that psychometric testing was not the only way to achieve the competency of a candidate especially in these circumstances where a candidate was medically diagnosed with Asperger’s syndrome and where medical evidence clearly showed that the candidate was placed at a disadvantage. The “legitimate aim” sought by the Government Legal Service was test competency and the EAT found that the requirement of the Government Legal Service for this particular employee to complete the SJT and pass with a score over 14 did not serve a legitimate aim. It was therefore deemed that the requirement was not proportionate in regards to achieving the aim required, namely test competency.