Posted by Lydia Excell, Trainee Solicitor
Are multiple choice tests discriminatory?
In May, the Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal – that a job applicant with Asperger’s suffered indirect disability discrimination when she had to complete a multiple choice test after the prospective employer had failed to make reasonable adjustments.
Indirect discrimination occurs when a provision, criterion or practice (PCP) which applies to everyone in the same way has a worse effect on some people with protected characteristics than on other people. The employment law defines a number of protected characteristics such as age, disability, race, religion or belief, sex, sexual orientation or pregnancy.
In The Government Legal Service –v- Brookes, the applicant who had Asperger’s syndrome applied to the Government Legal Service (GLS) for a position where she held the required qualifications. The first stage of the recruitment process was a multiple choice test based on situational judgment. Ms Brookes immediately made the prospective employer aware of her condition and requested an adjustment where she could provide a short narrative answer instead. This was one month before the test. This alternative format was not available, so Ms Brookes took the multiple choice test and was informed that she failed. Her results were 12/22, and the pass rate was 14/22.
Ms Brookes brought the following claims in the employment tribunal for disability discrimination:
- GLS had indirectly discriminated against her by applying a “provision, criterion or practice” (PCP) which placed her at a particular disadvantage and which could not be justified.
- GLS failed to make reasonable adjustments to the test.
- She had suffered discrimination because of something arising as a consequence of her disability.
The Employment Tribunal’s decision
The Employment Tribunal upheld Ms Brookes’ claims of disability discrimination on all three grounds. The Tribunal believed that the medical evidence, while not conclusive it did support that Ms Brookes was placed at a particular disadvantage when required to complete a multiple choice test. The Tribunal ordered GLS to pay Ms Brookes £860 in compensation and to provide an apology. It also made recommendation for GLS to review their procedure for recruiting disabled candidates with a view to providing greater flexibility in psychometric testing.
GLS appealed the matter on the grounds that the decision was perverse and the findings of fact were not supported by medical evidence. The EAT dismissed the appeal and confirmed that the decision of the Tribunal and its reasoning could not be faulted. Although the medical evidence did not say exactly how disadvantaged Ms Brookes was by the format of the test, this did not mean it was unreliable or should be disregarded.
What action should employers take?
Many employers rely on multiple-choice tests in their recruitment process. However, this case illustrates that such testing could lead to potential discrimination, and employers are advised to assess whether reasonable adjustments should be made in situations where a disabled applicant could be put at a disadvantage.
Are you considering any reasonable adjustments that your company may need to put in place? Contact our specialist employment team for advice on:
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