A job applicant who was on the austistic spectrum asked the employer to allow her to give narrative answers in an assessment as part of a “fiendishly competitive” recruitment process. She said the normal system of selecting from multiple choice answers put her at a disadvantage. The employer refused. The EAT upheld her claim for disability discrimination.
2017, Employment Appeal Tribunal (EAT). Full judgment www.bailii.org/uk/cases/UKEAT/2017/0302_16_2803.html
The claimant had Asperger’s syndrome. She claimed she was discriminated against by being required to sit a multiple choice Situational Judgment Test (SJT). This was the first stage in a “fiendishly competitive recruitment process” for lawyers wishing to join the Government Legal Service.
As a multiple choice test, the SJT was seen as efficient in the sense that there were considered to be objectively right or wrong answers to each multiple choice question. This meant marking could be done by a computer without human intervention or judgment. However the claimant argued that because of her Asperger’s she was unlawfully disadvantaged by the multiple choice method of testing. She said the employer should have granted her request to be allowed to answer the SJT questions in the form of short narrative written answers.
The employment tribunal upheld her claim for (1) failure to make reasonable adjustments, (2) discrimination arising from disability under s.15 EqA and (3) indirect discrimination under s.19 EqA. (There is more on these different types of claim in My comment below.)
Held: the EAT upheld the tribunal’s decision that there was disability discrimination on all three counts.
Insisting on multiple choice answers was not justified
The EAT upheld the employment tribunal’s finding that the requirement to sit the SJT in the form of multiple choice questions was not justified, for the purpose of s.15 and s.19, and a failure to make a reasonable adjustment under s.20.
The tribunal had held that the online SJT served the legitimate aim of testing a fundamental competency, namely the ability to take effective decisions, but that the test in this form was not a proportionate means of achieving the aim. In its appeal to the EAT, the employer argued it was a proportionate means and, in effect, that the employment tribunal should have treated this as a case like Lowe v Cabinet Office where the method of testing and the competency itself were found to be inseparable and effectively the same thing. In Lowe the competencies being tested concerned relationships and oral communication.
However the EAT held the employment tribunal was entitled to decide that multiple choice answers were not justified. The tribunal had properly performed the balancing exercise to determine proportionality. The tribunal set out the factors on the employer’s side of the balance, accepting that it would not be ideal to have to run two such different methods of assessment alongside each other, and inevitably there would be difficulties in comparing candidates’ answers. Marking narrative answers would require subjective human judgment.
The tribunal balanced that against the factors on the employee’s side of the balance, and it properly decided that these factors outweighed the points on the employer’s side of the balance.
The tribunal had also considered whether there was time to organise the adjustments. In any event though, the tribunal found that the employer’s objection was “on principle rather than on practical grounds”.
In addition the EAT upheld the employment tribunal’s finding that the requirement to take and pass the online SJT placed the claimant at a particular disadvantage compared with someone not disabled, even though some people with autism may perform well in such tests.
The case is an interesting illustration of how failure to make an adjustment to an assessment in recruitment may result in multiple types of claim under the Equality Act, here:
- failure to make reasonable adjustments;
- discrimination arising from disability (s.15 EqA) – unfavourable treatment (rejection of the job application) because of something (failing the test?) arising in consequence of the disability, if the employer is unable to justify the unfavourable treatment: and
- indirect discrimination (s.19 EqA) – applying a practice to people generally if the practice puts those with a particular disability (including the claimant) at a particular disadvantage and the employer is unable to justify the practice.
It is easy just to think in terms of reasonable adjustments. S.15 is a particularly useful additional claim.
The EAT considered in some detail the tribunal’s decision on the justification defence under ss.15 and 19. However presumably if that justification defence is rejected (as it was here), the tribunal is also likely to find (as it did here) that it would have been “reasonable” for the employer to make an adjustment.