12 May 2017
Government Legal Service v Brookes
There was no error of law in the Tribunal's decision that the Claimant, who has Asperger's syndrome, was discriminated against by being required to sit a multiple choice "Situational Judgment Test" ('SJT') as the first stage in a competitive recruitment process for lawyers wishing to join the Respondent. The aim of the SJT was to test a candidate's ability in effective-decision making. The Tribunal's decisions 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.
SJT, being a multiple choice test, is efficient in the sense that there are considered to be objectively right or wrong answers to each multiple choice question, which means marking can be done by a computer without human intervention or judgment. But the Claimant argued that because of her Asperger's she was unlawfully disadvantaged by the multiple choice method of testing and that the Respondent should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers. The Respondent argued before the Employment Tribunal that it was justified in refusing the request. It argued that the case was not made out because the Claimant could not show that the testing method put those with Asperger's or other forms of Autistic Spectrum Condition (ASC), nor the Claimant herself, at a particular disadvantage; and because even if it did, the requirement was objectively justified as a proportionate means of achieving the legitimate aim of recruiting the best candidates by testing their ability to make effective decisions.
At the heart of the appeal was this question : should an employer have to adapt a test to the point where (according to them) it no longer effectively tests whether someone would be able to do the job? So GLS argued at the EAT. The evidence of both witnesses for GLS was to the effect that, in their opinion and in their experience, a written answer narrative format would not be as useful a tool because, among other things, it would require the application of subjective human judgment. One of the witnesses also said that it would be expensive and would cause logistical difficulties. The ET and EAT rejected the argument that only the SJT in the original format could test for the competency. Adjustments could be made for a small number of candidates such as the Claimant and the conclusions of the ET were soundly based in the evidence.
12 May 2017