It is not uncommon for employers to operate a multiple choice test as part of a recruitment process. Most find it an effective and relatively easy way to sift through prospective candidates at an early stage. However, in the recent case of The Government Legal Service v Brookes (UKEAT/0302/16/RN), The Government Legal Service (“GLS”) was held accountable for failing to make reasonable adjustments to a multiple choice test, for a candidate with Asperger Syndrome. So, what we can we learn from the decision in this case?
GLS, required candidates to complete a multiple choice “situational judgement test” (“SJT”), as part of the first stage of their recruitment process. GLS relied upon the results of the SJT to evaluate a candidate’s ability to make effective decisions.
Brookes, a law graduate with Asperger Syndrome, contacted the recruitment team at GLS before commencing the recruitment process to advise of her condition and to request suitable adjustments. In particular, rather than choosing from multiple options, she asked to provide answers to the SJT in narrative form
Medical experts gave evidence during the Employment Tribunal (“ET”) hearing and confirmed that Brookes fitted the profile of those who would ordinarily be disadvantaged by such a test given she specifically lacked social imagination and would have difficulty in imaginative and counter-factual reasoning in hypothetical scenarios. On the other hand, GLS’s representative presented statistical evidence that supported the proposition that no other candidate, professing to have Asperger’s, had requested an alternative test method. That in itself however did not amount to a finding that a person with Asperger would never make such a request or that such an adjustment would not alleviate any borne disadvantage.
The ET held – and the Employment Appeal Tribunal (“EAT”) agreed – that Brookes had been indirectly discriminated against on the grounds of her disability; she had been treated unfavourably because of something arising from her disability; and GLS had failed to make reasonable adjustments.
Now, to a degree, we can accept the rationale for having an SJT as part of a recruitment process. It was a competency based test with the aim of assessing a candidates ability to make effective decisions. Both the ET and EAT agreed that that was a legitimate aim. However, GLS were unable to convince either Tribunal that it was a proportionate way of assessing a candidate’s ability to make effective decisions and that is where GLS fell – they were unable to “objectively justify” the SJT.
What does this mean when recruiting for your business?
This case perhaps serves as a timely reminder for employers to regularly review their current recruitment process.
Recruitment processes can be challenged by unsuccessful candidates and claims can be raised on the grounds that a business has acted discriminately (on the grounds of a candidate’s age, gender or sex for example). With that in mind, here are a few matters to consider when reviewing your recruitment process:
- Could any part of your recruitment process place a candidate, with a protected characteristic*, at a disadvantage when compared to someone who does not share that characteristic? If so, how can you avoid that disadvantage?
- Avoid using specific requirements in relation to a protected characteristic e.g. “we’re looking for a young female to join our administration team”
- What is the reason for having your particular recruitment process – what are you trying to achieve? Is there a better way of achieving that objective?
- Are there any adjustments that could be made to your process that are not currently considered and if so, what should they be?
- If you use a recruitment agency, are you satisfied that their method of recruitment meets the standards you expect?
The protection afforded to candidates, workers and employees under the Equality Act is far reaching and employers should ensure that their recruitment processes are not susceptible to challenge. Employers should follow best practice at each stage of the recruitment process, from identifying the vacancy to selecting the candidate and making an offer of employment. There can be pitfalls on the way and if you are ever unsure of how to deal with a particular issue, seeking legal advice is always recommended.
*Protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Leyton Legal is the trading name for both Leyton UK Partners LLP and Leyton Legal (Scotland) LLP. Leyton UK Partners LLP (registered number OC388386) is an Alternative Business Structure (ABS) authorised and regulated by the Solicitors Regulation Authority (SRA) under licence number 619453 in respect of legal work. Leyton UK Partners LLP also carries out R&D funding related consultancy services and these R&D funding services are not regulated by the SRA. Leyton Legal (Scotland) LLP (registered number SO305978) with its registered address at The Hatrack, 144 St Vincent Street, Glasgow, G2 5LQ, is a separate legal entity and is regulated by the Law Society of Scotland. Leyton Legal (Scotland) LLP is not an ABS.