Requirement to sit multiple choice test was disability discrimination

An employer discriminated against a candidate with Asperger’s syndrome when it required her to sit a multiple choice test.

Speedread

An employer discriminated against a candidate with Asperger’s when it required her to sit a multiple choice test. The discrimination was not justified. Although the employer’s aim of testing candidates’ ability to make effective decisions was legitimate, its insistence on the multiple choice test format was disproportionate. It could have used the less discriminatory testing method suggested by the candidate of providing short written answers. The multiple test format was not inextricably linked to the competency being tested (the ability to make effective decisions).

Facts

In Government Legal Service v Brookes, the Government Legal Service (GLS) required all applicants for training contracts to sit an online multiple choice situational judgment test. Ms Brookes, who suffered from Asperger’s syndrome, asked if she could provide short narrative answers instead. GLS refused, saying that an alternative test format was not available, but time allowances were, as well as a guaranteed interview for those who passed all three entry level tests. Ms Brookes sat the test and scored 12 out of 22. The pass mark was 14. She claimed disability discrimination and the employment tribunal upheld her claims.

The requirement to sit a multiple choice test was a provision, criterion or practice. The medical evidence indicated that the multiple choice format put people with Asperger’s at a particular disadvantage and put Ms Brookes at that disadvantage. The requirement to sit the test in an unaltered format was also unfavourable treatment. Whilst  GLS had a legitimate aim (testing candidates’ ability to make effective decisions), the means of achieving that aim were not proportionate. There were less discriminatory means of achieving it – the alternative testing method proposed by Ms Brookes.  GLS could not therefore justify its insistence on her sitting the multiple choice test and her claims of indirect discrimination and discrimination arising from disability succeeded.

The adjustment requested by Ms Brookes was also reasonable and so GLS had breached its duty to make reasonable adjustments.

GLS appealed

Decision

The Employment Appeal Tribunal rejected GLS’s appeal. The employment tribunal had been entitled to conclude on the basis of the medical evidence that Ms Brookes was disadvantaged by the multiple choice format. She fitted the profile of a person with Asperger’s who was likely to be disadvantaged by this format (someone who lacked social imagination). Her psychiatrist had also made recommendations previously during her degree course that multiple choice testing would not be appropriate, given her condition. No alternative theory was put forward as to why she had failed to achieve the pass mark and so the tribunal was entitled to conclude that it was due to the format of the test.

Whilst GLS needed to test an applicant’s ability to make effective decisions, the tribunal had been entitled to reject its argument that the only way of doing this was by means of the multiple choice test. The format was not inextricably linked to the core competency being tested. Allowing her to provide short written answers might have presented logistical problems (extra expense and need for subjective assessment) but those inconveniences to the employer did not outweigh the disadvantages to Ms Brookes. 

Implications

Employers need to be aware that recruitment tests have the potential to be discriminatory. If they receive requests for adjustments from disabled candidates they should consider these very carefully. In this case, the employer provided extra time to complete the test and gave a guaranteed interview to those who passed all three required tests but this was not sufficient.