Employment Law Case Update: Government Legal Service v Brookes

Multiple choice answers can seem like a simple way of assessing potential of candidates – but do you risk:

1. Missing out on a promising non-standard employee?
2. Eliminating more imaginative responses?
3. Answering a claim of discrimination?

In the case of Government Legal Service v Brookes, Brookes was a prospective trainee solicitor applying for a trainee solicitor role with Government Legal Services.  GLS recruited approximately 35 trainee solicitors each year and they received thousands of applications for these roles.  The first stage of recruitment was for all applicants to sit an online ‘situational judgment test’. This involved a number of multiple choice questions which tested the candidate’s ability to make effective decisions.

Brookes was a law graduate with Asperger’s syndrome. She contacted GLS prior to the recruitment round requesting adjustments to the situational judgment test by being allowed to put her answers to the questions in a short narrative form rather than pick a multiple choice answer. She was informed that this was not possible but there were time allowances.

Brookes completed the situational judgment test and received a score of 12 out of 22. The pass mark was 14 therefore her application went no further.

She went on to bring a claim of indirect disability discrimination; discrimination because of something arising in consequence of her disability and a failure to comply with the duty to make reasonable adjustments.

The tribunal in this case, having heard medical evidence, concluded that the PCP -  ‘provision criterion or practice’ - which was the requirement for all candidates to take and pass the online test,  applied by GLS placed people who had Asperger Syndrome at a particular disadvantage compared with those who did not have it. Brookes’ Asperger’s manifests in a lack of social imagination and causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios.  It was held that the PCP did have a legitimate aim; however the means of achieving that aim were not proportionate. The tribunal concluded that there were less discriminatory alternatives such as the way that Brookes had suggested.

GLS appealed the decision as, while they agreed that the PCP placed those with Asperger’s at a disadvantage, they did not agree that Brookes experienced the same disadvantage.  The EAT did not allow the appeal and stated the following:

“The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the situational judgment test, but had not quite managed it. The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the test.” 

Following this case, employers should review their recruitment assessments; what reasonable adjustments they could make, and the procedure for what to do if a request is made.  They must ensure that any request for a reasonable adjustment is judged by a legitimate aim to the business and whether they can achieve those aims proportionately.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.