Disability discrimination during recruitment

The Government Legal Services v Brookes [EAT] | 2017

As part of their “fiendishly competitive recruitment process” the respondent required candidates to sit a multiple choice Situational Judgement Test (SJT). Ms B, who suffered from Asperger’s Syndrome, asked the Service to make adjustments to the test to allow her to answer the questions in the form of short narrative written answers instead. The request was refused.

Ms B completed the SJT as a multiple choice test and failed.  She brought claims for indirect disability discrimination, failure to make reasonable adjustments and discrimination because of something arising from a disability under the Equality Act 2010 (EqA) and was successful. Particularly, it found that the SJT was a provision, criterion or practice (PCP) which put people such as the claimant, as a group, at a disadvantage compared to those who did not have Asperger’s Syndrome and put Ms B to that disadvantage.  It also was not a proportionate means of achieving a legitimate aim (often referred to as objectively justified).

The Government Legal Service appealed to the Employment Appeal Tribunal (EAT).

The respondent appealed that the PCP did not put Ms B at a disadvantage and that the requirement to sit the SJT as a multiple choice test was objectively justified.

The EAT held that the ET had not made an error in law. It went as far as to criticise the respondent for “attempting to re-argue the factual case … under the guise of an appeal on a point of law.” The EAT stated that the “Tribunal’s decision that the respondent had indirectly discriminated against the claimant, had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability, were unassailable and correct in law.”