As those who read our recent update on banning religious clothing may recall, indirect discrimination occurs when a rule or policy is applied to all but it puts a group with a protected characteristic (such as disability) at a particular disadvantage.
People with disabilities are also protected from unfavourable treatment because of something that happens as a result of them having the disability. This is known as ‘discrimination arising from a disability’, and an example is dismissing someone for disability-related absence.
There is also a duty on prospective and current employers to make reasonable adjustments for a person with disabilities, including at the recruitment stage.
In The Government Legal Service v Brookes, Ms Brookes applied for a role as a trainee solicitor with the Government Legal Service (GLS). The first part of the recruitment process was a multiple choice test. Ms Brookes has Asperger’s syndrome and, as an accommodation for her condition, she asked the GLS if the test could be amended to allow her to provide written answers to the multiple choice questions. Despite Ms Brookes’ request being made a month in advance, the GLS stated that the test could not be changed.
Ms Brookes sat and failed the test. She then brought a claim of indirect disability discrimination on the basis that the test put her at a particular disadvantage due to her Asperger’s. She also claimed that she had suffered discrimination arising from her disability in that the GLS had refused to make a reasonable adjustment for her in relation to the test. A third claim related to the failure to make reasonable adjustments being a form of discrimination in itself.
The Employment Tribunal (ET) upheld all three claims, agreeing that Ms Brookes was disadvantaged by the need to complete the multiple choice test and that reasonable adjustments should have been made. The GLS appealed, claiming that the ET’s decision was perverse.
The Employment Appeal Tribunal (EAT) upheld the ET’s decision. Each party had provided medical evidence, but both expert witnesses agreed that Ms Brookes was likely to be disadvantaged by the multiple choice test. In addition, the GLS could not provide any other explanation as to why Ms Brookes had failed the test.
The GLS attempted to argue that there was a need to determine whether trainee solicitors could make effective decisions and that the multiple choice test was the only way of doing that. However, the EAT was not persuaded by that argument and stated that such a competency could have been tested another way, even if the alternative was more expensive and/or labour-intensive.
As such, the ET’s conclusion that Ms Brookes had suffered discrimination was held to be sound.
This case is a reminder that equality protections are afforded not only to employees, and that both pre and post-employment are covered. If faced with a request for an adjustment from a disabled applicant, recruiters should exercise caution before saying no. Allowing extra time to respond, using a different way of measuring competence and ensuring physical access to an interview are all likely to be considered reasonable adjustments.
In addition, employers who use particular forms of testing as part of a recruitment process may wish to plan ahead and consider possible alternative methods for disabled applicants.
If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.