11th May 2017

Multiple choice test was disability discrimination

We take a look at a recent disability discrimination case of The Government Legal Service v Brookes where a multiple choice test for applicants placed a woman with Asperger’s at particular disadvantage and was not justified.

Broadly speaking, applicants who have a disability should not be treated less favourably or put at a disadvantage by any provision, criterion or practice (PCP) unless it can be objectively justified (although direct disability discrimination cannot be objectively justified). Employers also have a duty to make reasonable adjustments to premises or working practices to assist applicants and employees.

Ms Brookes suffered from Asperger’s and applied for a post of trainee lawyer with The Government Legal Service (GLS).

The process involved several stages with the first being a multiple choice test. Ms Brookes asked GLS if the format of the test could be adjusted for her due to her disability and GLS said no, but extra time would be given for tests at a later stage. Mr Brookes scored 12 when the pass mark was 14 and she then brought claims of disability discrimination that:

  • GLS had indirectly discriminated against her by applying a PCP which placed her at a particular disadvantage and which could not be justified;
  • she had suffered because of something arising as a consequence of her disability; and
  • GLS had failed to make reasonable adjustments to the test.

The Tribunal upheld her claims and GLS appealed.

The EAT upheld the decision of an employment tribunal. The requirement to undergo the multiple choice test was a PCP which put her at a particular disadvantage and which could not be justified. By refusing to amend the test as requested by Ms Brookes, the employer had also failed to make reasonable adjustments.

This decision is something for employers to be aware of when considering their recruitment practices and whether reasonable adjustments may need to be made in some circumstances.

If you need advice on this topic, or any other employment law matter, please contact us on 01730 268211 or at linda.wilson@macdonaldaotes.co.uk and we would be pleased to help.

N.B. Please note that the above information is a guide only and does not constitute legal advice. We recommend seeking specialist legal advice on your own particular circumstances