A job applicant was at a disadvantage in a situational judgment test because he had Asperger’s syndrome. This test was the initial stage in the recruitment process. The employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments. It did not matter that the claimant had not suggested at the time what reasonable adjustment he wanted.
2019, Court of Appeal in Northern Ireland. Full judgment www.bailii.org/nie/cases/NICA/2019/43.html
Facts
The claimant had various conditions including Asperger’s Syndrome, a form of Autism Spectrum Disorder (ASD). BT was a “disability confident employer”, and under the Guaranteed Interview Scheme guaranteed to interview anyone with a disability whose application met the minimum criteria for the job. The claimant applied for a job with BT in March 2017, telling them about his disabilities. However the application that went to the recruitment team in anonymised form did not include the disability information; that information went only to the BT diversity section.
BT said he should complete a Situational Strength Test (SST). The claimant’s mother had grave misgivings about the ability of her son to do well in the SST but she assumed that in view of the guarantee of an interview he would in any event be interviewed. He took the test and BT said that based on the outcome his application was rejected; he would not be taken forward to the Skype interview stage.
The claimant’s mother emailed BT later in March criticising the use of the SST, which she said was problematic for people with ASD. The company owning the test told BT that ASD affects individuals differently. The company highly recommended that BT encourage the claimant to share more detail on how this condition was impacting on him so that BT might further evaluate if there were grounds for adjustments to the assessment. However BT did not do this.
In further correspondence BT did not agree to take action. In mid May the mother drew BT’s attention to Government Legal Service v Brooks, a successful claim by a person with Asperger’s about an online multiple choice situational judgment test. After being pressed for a reply, BT did say in June that the claimant had never identified what adjustments were needed and BT would consider whatever identified adjustments could be accommodated. However the Court of Appeal commented that BT made no reference to “the obvious adjustment provided for in BT’s own Disability Scheme, namely moving the candidate to the interview stage. [BT’s] communication made no suggestion that the test could or should be bypassed. The email threw the onus on the candidate to come forward with an adjustment to the SST.” The claimant put in a claim for failure to make reasonable adjustments.
Held by NI Court of Appeal: BT had failed to make reasonable adjustments.
NI Court of Appeal judgment
The Court of Appeal upheld the Industrial Tribunal decision which had said that while the claimant did not request any specific adjustments the duty to make reasonable adjustments lay on the employer. BT could have made reasonable adjustments of:
- (a) not requiring the claimant to sit the SST; and/or
- (b) not using the results of the SST to stop him proceeding to the Skype interview stage.
The Tribunal found that BT had the ability to recruit candidates with appropriate competences at the next stage of the Skype interviews tested by the same competences.
The Court of Appeal rejected the employer’s argument that a claim should not have been made at this stage since BT had sought to engage with the claimant with a view to making reasonable adjustments. The court said that BT was still failing to face up to its commitment under the Guaranteed Interview Scheme to allow the claimant to proceed to an interview stage. BT had made no proposal of a reasonable adjustment. It expected the claimant to propose a reasonable adjustment without itself recognising that the employer had a legal duty to consider what reasonable adjustments would be appropriate. There was nothing preventing BT from properly engaging at an early stage in relation to the positive duty placed on it to make reasonable adjustments for the claimant as a disabled candidate.
The Court of Appeal also rejected BT’s argument that BT did not have the requisite knowledge to trigger a reasonable adjustment duty at the time of the job application. BT knew of the disability and failed to take any steps to consider whether information on the monitoring form was relevant to their commitment to plan for and make reasonable adjustments.
The Tribunal accepted evidence of a specialist clinical psychologist that individuals with ASD including the claimant would be placed at a substantial disadvantage by the SST.
My comment
Comment: Claimant need not have suggested the adjustment
This decision is in line with other cases which have held that the reasonable adjustment duty does not require the worker to have suggested the reasonable adjustment at the time, provided the “lack of knowledge” defence does not apply: Reasonable adjustment rules: employment>Onus to comply is on the employer.
Comment: Guaranteed interview scheme
This decision was not necessarily based on the guaranteed interview commitment. However the courts do seem to have taken that commitment into account in finding that the employer should have interviewed him even though he failed the test. Failure to offer a guaranteed interview when the employer has committed to do so may make it easier for a tribunal to find that the employer has acted unreasonably or without justification. See ‘Disability Confident’ and guaranteed interviews>What if an employer fails to meet the commitments?
Comment: Assessments in recruitment
This decision emphasises, though it was clear anyway, that assessments in recruitment are subject to the reasonable adjustment duty. This was a case from Northern Ireland though, where disability discrimination protection is more limited than in the rest of UK. In England, Scotland and Wales where the Equality Act applies, additional claims are also likely to be relevant, including s.15 EqA, as claimed in Government Legal Service v Brookes>My comment.
