Multiple choice test = indirect disability discrimination

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Multiple choice tests are commonplace in recruitment processes and are a relatively easy way for employers to whittle down the number of applicants, especially where there are large numbers of applicants. However the case below highlights the potential dangers of such tests.

In Government Legal Service v. Brookes the claimant, who has Asperger’s Syndrome, applied to the Government Legal Service (GLS) for the position of trainee solicitor. The first stage in the recruitment process was to sit a situational judgement test (SJT), which asks a series of multiple choice questions and is aimed at testing candidates’ ability to make effective decisions. Candidates need to achieve a certain score to move on to the next stage. Asperger’s tends to result in difficulties in social interaction and non-verbal communication and can cause difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. As a result of this the applicant requested that she be able to provide short narrative answers to the questions in the SJT, rather than have to select from multiple choices. GLS refused this adjustment, stating that the multiple choice layout on a computer was the most cost-effective way of testing candidates and also removed human error from marking. Instead, GLS said that she could take the test without a time limit. The claimant took the test and narrowly missed the score which would have enabled her to proceed to the next stage. She subsequently brought claims of indirect disability discrimination and of failure to make reasonable adjustments.

The Employment Appeals Tribunal (EAT), upholding the Employment Tribunal’s (ET) decision, refused GLS’ appeal and held that the claimant had been subjected to indirect disability discrimination and discrimination because of something arising in consequence of her disability. It also found that GLS had failed to provide reasonable adjustments. The main points that the ET and the EAT made are as follows:

  • The provision, criterion or practice (PCP) of requiring all applicants to take and pass the SJT put people with Asperger’s at a particular disadvantage. It also put the claimant herself at a disadvantage.
  • There was no alternative explanation put forward by GLS as to why the claimant had failed the test.
  • There was a legitimate aim (testing competency of potential trainees); however, as there was a less discriminatory way of achieving the aim (i.e. letting the claimant provide short narrative answers as she had requested), the means of achieving that aim were not proportionate.

The claimant was awarded compensation (the relatively low amount of £860) and the ET recommended that GLS (1) apologise in writing and (2) review its recruitment procedures in relation to people with disabilities. This of course does not account for the impact of the reputational damage caused by the publicity surrounding this case.

This case is a good reminder that, if you are an employer that uses testing in your recruitment process, care needs to be taken to ensure that the method of testing does not disadvantage applicants with disabilities and that reasonable adjustments are considered and implemented wherever possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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