Employers may want to look at their recruitment selection methods after the Employment Appeal Tribunal (EAT) ruled that a woman with Asperger’s syndrome was discriminated against when she was asked to take a multi choice test during a competitive recruitment process for the Government Legal Service (GLS). Article from Stephen Foster partner in HR & employment team at SAS Daniels.

The recruit, who represented herself in the case, was asked to take the multiple-choice test as part of the first stage of her application to the GLS. She argued that she should have been allowed to submit short written answers to the questions, as the nature of the multiple-choice test placed her at a disadvantage. Nevertheless she was required to complete the test and scored 12 marks out of a possible 22, but needed 14 or more to pass.

At Tribunal, the GLS argued that, even if the recruit could successfully demonstrate that the multiple-choice test placed her and others with an autistic spectrum condition at a disadvantage, the testing was a proportionate method to achieve a legitimate aim i.e.  selecting the best candidates for the position.

An employment tribunal ruled last year that there was no other reason to identify why she had failed and agreed that she did not pass the test because of her disability. By asking her to take the test as it stood, the GLS had treated her less favorably and indirectly discriminated against her in failing to make reasonable adjustments that took into account her disability. Although the tribunal accepted that the testing served a purpose and the multiple-choice format made the assessment process more efficient, the tribunal found that the methods used were ultimately disproportionate to the outcome the GLS was trying to achieve.

The GLS appealed but the EAT agreed with the original ruling and refused permission to appeal the case any further. This case shows the importance of considering reasonable adjustments for disabled candidates. Where tests such as the one in this case, or any other method that could be considered a “PCP” [Provision, Criterion or Practice] an employer needs to show that the PCP is a proportionate means of achieving a legitimate aim if it’s capable of putting a particular group at a disadvantage.