In the case of The Government Legal Service v Brookes UKEAT/0302/16/RN the Employment Appeal Tribunal (“EAT”) held that the Tribunal had not erred that forcing a person with Aspergers to sit a multiple choice test constituted disability discrimination.

The factual background of The Government Legal Service v Brookes

Ms Brookes, who has Asperger’s syndrome, applied to the Government Legal Service in 2015 for the role of trainee solicitor. Recruitment to the Government Legal Service involves at the first stage undertaking the multiple choice ‘Situational Judgment Test’ (“SJT”), and then further tests and interviews.

The Government Legal Service published the recruitment timetable in May 2015 and in June 2015 Ms Brookes informed the recruitment team that she had Asperger’s syndrome, requesting that reasonable adjustments be made for her disability. On 30 June 2015 she was told that an alternative test format to that of multiple choice was not available but that other adjustments would be made (such as giving her more time to complete the test).

On 1 July 2015 the recruitment opened. Ms Brookes contacted the Government Legal Service on 28 and 29 July 2015 to complain of the discriminatory impact of the SJT. She took part in the SJT and submitted her answers on 30 July 2015. She was informed on 4 August 2015 that she had not passed the SJT (scoring 12 points when the pass mark was 14).

Ms Brookes subsequently made a claim in the Employment Tribunal against the Government Legal Service for indirect discrimination, failure to make reasonable adjustments, and discrimination arising from disability.

The Employment Tribunal’s decision

The Employment Tribunal found in Ms Brookes’ favour in respect of her claims for indirect discrimination, failure to make reasonable adjustments, and discrimination arising from disability. In particular, the Tribunal held that there were more proportionate means available to the Government Legal Service than simply imposing the SJT on all applicants.

The Government Legal Service appealed against the Tribunal’s decision on the following grounds:

  1. That the requirement that Ms Brookes take the SJT did not in fact place her at a particular disadvantage as compared to persons who did not share her disability; and
  2. That the Tribunal had erred in finding that the use of the SJT by the Government Legal Service was not a proportionate means of achieving a legitimate aim

The decision of the Employment Appeal Tribunal

The EAT rejected both grounds of appeal by the Government Legal Service, holding that the Tribunal had appropriately applied the law and relevant evidence in coming to its conclusions.

Our lawyers’ comment

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that businesses should be very careful when formulating recruitment tests and, in particular, must carefully consider any requests from disabled persons for adjustments to any recruitment tests that they use – a failure to deal reasonably with such a request could lead to a potential discrimination claim.”

The decision of the Employment Appeal Tribunal in the case of Government Legal Service v Brookes can be found here.

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