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Case law: Multiple choice test can discriminate against job applicant with Asperger's Syndrome

Employers should ensure they are aware of employees' and job applicants' disabilities, such as Asperger's, and consider which reasonable adjustments need to be made to their recruitment processes, or whether those processes can be justified - or risk an unlawful discrimination claim.

Legal Alert

This update was published in Legal Alert - June 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A job applicant with Asperger's Syndrome was required, along with other applicants, to take a multiple choice test as part of the interview process. She told the employer that she had Asperger's, and the test was a PCP which indirectly discriminated against her because of her disability. She suggested that a 'reasonable adjustment' would be to allow her to write brief, free-text answers to the questions instead.

The law says there is unlawful indirect discrimination if:

  • an employer operates a provision, criteria or practice (PCP) which puts a group of employees (including the employee who is complaining about it)
  • who share a 'protected characteristic' (such as a disability)
  • at a substantial disadvantage compared with people without the disability, and
  • the disadvantage suffered by the individual making the complaint and the other members of the group are the same

Effectively, it catches situations where an employer's practice, policy or rule applies to everyone, but it has a worse effect on a particular group of employees, whose members share a protected characteristic, than the rest of the workforce.

However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim, for example, there are health and safety reasons for it.

If a PCP is unlawful, employers must make 'reasonable adjustments' for disabled employees to alleviate the effect of their disadvantage. They may have to change how things are done, make physical changes at work or provide equipment or help to the employee. Whether an adjustment is 'reasonable' depends on the circumstances.

The employer argued that it received several thousand applicants for 35 jobs each year and needed an efficient way to filter them. A multiple choice test allowed a computer to filter applicants at an early stage without the need for human involvement. The test was therefore a proportionate means of achieving a legitimate aim.

The applicant sat the test but failed, and claimed indirect discrimination on the grounds of disability and a failure to make reasonable adjustments.

The Employment Appeal Tribunal said that there was unlawful discrimination because the test put people with Asperger's at a disadvantage. It also ruled that the test served a legitimate aim, but it was not a proportionate means of achieving that aim.

Operative date

  • Now

Recommendation

  • Employers should ensure they are aware of employees' and job applicants' disabilities and consider which reasonable adjustments may need to be made to any step in their recruitment processes, or whether those steps can be justified, or risk a ruling of unlawful discrimination against them

Case ref: Government Legal Service v Brookes UKEAT/0302/16/RN

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.