Is your recruitment process discriminatory?

By Andrew Gilchrist, head of employment law at Lupton Fawcett

It is not uncommon for employers to use tests involving multiple choice questions during a recruitment process as a means of narrowing down the field of candidates to be selected for interview. On the face of it, this appears to be a fair and non-discriminatory way of recruiting employees, as all of the candidates are treated in the same way. However, this is not necessarily the case.

In the recent case of The Government Legal Service v Brookes, the Employment Appeal Tribunal considered whether a job applicant with Asperger’s syndrome suffered disability discrimination by virtue of having to undergo a multiple choice test.

The facts are straight forward. Ms Brookes, who has Asperger’s syndrome, applied to join The Government Legal Service (GLS) in July 2015. At the first stage of the recruitment process, she was required to sit a multiple choice test. On becoming aware of this, she contacted the GLS and asked if an adjustment could be made to the test to take account of her condition.

Specifically, she asked if she could provide short narrative answers instead. GLS indicated that this was not possible, leaving Ms Brookes to take the test in the same format as the other candidates. In August 2015, Ms Brookes was informed that she had not passed the test.

At this point, it is important to note that employees, or indeed potential employees, who have a disability are able to bring claims for disability discrimination in a number of ways.

1. If an organisation discriminates against an employee because of their disability (eg if they are not offered a job because of their disability), they can bring a claim for direct discrimination.

2. If an organisation applies a provision, criterion, or practice (PCP) which puts a disabled person at a particular disadvantage and that PCP cannot be justified, they can bring a claim for indirect discrimination.

3. If an organisation treats a disabled person unfavourably because of something arising in consequence of his or her disability (and cannot justify it), the disabled individual can bring a claim for discrimination arising from the disability.

4. If an organisation does not make reasonable adjustments to the workplace, which can include to procedures in the recruitment process that would have alleviated the disadvantage, the disabled individual can bring a claim for a failure to make a reasonable adjustment.

In the present case, Ms Brookes claimed the GLS had indirectly discriminated against her by requiring her to complete the multiple choice test which placed her at a disadvantage and which could not be justified. She also claimed she had suffered discrimination because of something arising as a consequence of her disability and that GLS had failed to make reasonable adjustments to the test.

Ms Brookes succeeded with all her claims.

The lessons from this case are clear; if an employee or applicant has a disability, the employer needs to think very carefully about the procedures and processes in place and whether adjustments are required. A process which was designed to ensure a level playing field, and eliminate human bias, was not discrimination proof. Employers may be expected to allow additional time or adjust their chosen method of testing in cases where the disabled individual complains that the method used puts them at a disadvantage.

This is a particularly complicated area of employment law. In some cases procedures and criteria can be justified, notwithstanding their discriminatory impact. However, on this occasion, neither the Tribunal nor the Employment Appeal Tribunal found this was the case. It will often come down to an analysis of the individual facts, requirements of the job and type and effect of any disability.

For further help or advice, please contact Andrew Gilchrist, Head of Employment Law at Lupton Fawcett, on 0113 280 2263 or andrew.gilchrist@luptonfawcett.law