In Government Legal Service (GLS) v Brookes, the EAT has considered whether refusing to make adjustments to a multiple choice situational judgment test for a job applicant with Asperger's syndrome amounted to disability discrimination.

Ms Brookes applied to join the GLS as a trainee lawyer. The first stage in the recruitment process was an online multiple choice situational judgment test. Ms Brookes' Asperger's syndrome causes difficulties with imaginative reasoning in hypothetical scenarios. She therefore contacted GLS to ask whether an adjustment could be made to allow her to provide short narrative written answers instead of selecting from multiple choice answers. GLS informed her that an alternative test format was not available, but that allowances would be made in later tests if she passed the initial recruitment stages. Ms Brookes completed the test in its multiple choice format but her score was not high enough to proceed to the next stage. She subsequently brought claims of disability discrimination in the Employment Tribunal.

After hearing medical evidence, the Tribunal found that the requirement for all applicants to pass the multiple choice test put people with Asperger's, including Ms Brookes, at a particular disadvantage compared to those who do not have Asperger's. The Tribunal found that on the balance of probabilities, Ms Brookes' failure to pass the test was due to the format of the questioning. No alternative reason as to why she had failed the test had been put forward. The Tribunal also rejected GLS' arguments that the test was a proportionate means of achieving the legitimate aim of recruiting the best candidates by testing their ability to make effective decisions. The Employment Tribunal concluded that that GLS had indirectly discriminated against Ms Brookes, 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.

On appeal, the EAT agreed with the Tribunal's reasoning. Although the test had a legitimate aim of testing a fundamental competency required of trainees, requiring answers in a multiple choice format was not a proportionate means of achieving that aim because a reasonable, less discriminatory assessment method was available. The competency of candidates with Asperger's could have been properly measured through short written answers. Although this would have created logistical problems for GLS because of the need for subjective assessment rather than computerised marking, this did not outweigh the obligations owed to Ms Brookes.

This case is a reminder that employers should ensure that their recruitment procedures do not inadvertently discriminate against disabled candidates, and that any requests for adjustments must be carefully assessed. Where necessary, employers should consider whether the aims of a particular test can be achieved by less discriminatory means, for example, by allowing additional time, or providing an alternative test or method of responding.

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