Requirement to sit a written exam NOT disability discrimination

Previous cases, such as The Government Legal Service v Brookes UKEAT/0302/16/RN, concluded that a claimant who had Asperger’s Syndrome had suffered disability discrimination when she was required to take a multiple choice Situational Judgment Test as the first stage in a very competitive recruitment process for lawyers wishing to join the Government Legal Service.

The Equality Act 2010 (EqA) states that where an employer’s provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer is required to take such steps as it is reasonable to have to take to avoid the disadvantage (s20(3EqA)).  A failure to comply with this duty is a form of discrimination (s21EqA).

Furthermore, under s15 EqA “discrimination arising from a disability” will occur where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability and the employer cannot show that this treatment is a proportionate means of achieving a legitimate aim.

Mr Schofield was a Security Officer at Manchester airport. He had four learning difficulties: dyslexia, dyspraxia, dyscalculia and dysgraphia which, taken together, meant he was disabled under the EqA. After he started employment at the airport, Mr Schofield, and other new recruits, was put on a 15 day induction course. The new recruits needed to pass all elements of the course, part of which was assessed by means of a written exam with an 80% pass mark.  This exam contained mainly multiple choice or one word / short answers. The recruits were given an A5 sized booklet in small print containing all relevant course materials and the opportunity to sit several mock exams. The process was not competitive and so it was possible for all the new recruits to succeed.

Mr Schofield explained some of his difficulties to the trainer at the start of the course and some adjustments were made for him during the course and for the exam. Mr Schofield did not pass the exam and was given a further opportunity to sit the exam the same day. He did not pass the re-sit either. Adjustments included unlimited time for the exam, a large print exam paper, and the invigilator reading out some of the exam questions and explaining technical terms.  Mr Schofield did not ask for, and was not offered a scribe.

As he did not pass the test, Mr Schofield’s employment was terminated. Mr Schofield then brought a tribunal claim for failure to make reasonable adjustments and discrimination arising from disability. He claimed the airport should have made more adjustments for him by allowing him more time to take the exam, and providing him with a person to read the questions and write down the answers for him.

The Tribunal found that the requirement for Mr Schofield to take an exam did place him at a substantial disadvantage compared to those that were not disabled because he found it difficult to read and memorise the course material, he suffered from visual disturbance when trying to read the questions and he had some difficulty in writing down his answers.  However, although the airport was a large organisation which could be expected to devote considerable resources to making adjustments for disabled persons, the Tribunal decided that it had made sufficient adjustments in the circumstances.

The Tribunal also found that it wasn’t reasonable for Mr Schofield to be given more time as he had already been given unlimited time. Mr Schofield argued that he should be the only candidate to have more time. As the exam was not competitive and the EqA s20 duty does not require an employer to disadvantage a non-disabled person where this would not reduce the disadvantage suffered by a disabled person the Tribunal rejected that argument.

The Tribunal decided that in reading out some of the questions to Mr Schofield, the airport had made a reasonable adjustment.  It was not necessary to insist on reading out questions if the employee appeared to decline such an offer. 

The Tribunal did not consider it was reasonable for the airport to have to provide a scribe for him. Given the unlimited time Mr Schofield had to write down his own answers, no amount of writing assistance would have enabled him to pass.

The Tribunal went on to find that it was likely that there were other contributing factors unrelated to his disability, such as him misunderstanding the questions that caused him to fail the test. However, in relation to the claim for discrimination arising from disability under s15 EqA the Tribunal agreed that Mr Schofield was treated unfavourably (being dismissed) because of something arising in consequence of his disability (his failure of the test). 

However, his dismissal was proportionate in that the test was not just legitimate but also important. There is a strong public interest in ensuring that airport security staff are properly trained and tested. 

It was also noted that if Mr Schofield had formulated his claim differently the outcome might have been more favourable to him. For example, there was evidence to suggest part of the airport’s reason for dismissing him was a perception that his dyspraxia would make it difficult for him to conduct body searches.

What does this mean for you or your business?

Although this case is not ground-breaking, it is a useful reminder that Tribunals (even for large organisations like Manchester Airport) will not expect unlimited adjustments from employers in reasonable adjustments claims.

It’s also a useful reminder that in discrimination arising from disability claims defences will often stand or fall on the legitimacy and importance of the grounds on which Respondents insist on practices or procedures (such as the employee test for Mr Schofield).  As in this case, there is often unfavourable treatment of a Claimant so having a legitimate and proportionate well planned in advance reason for doing what you are doing is absolutely crucial.

Generally: 

• The question of what is a reasonable adjustment to make for a disabled employee is fact specific.
  
  
• Factors that will be taken into account in deciding whether an adjustment is reasonable include the cost of making the adjustment, its practicability, the size and financial resources of the employer.
  
  
• Testing employees is only likely to be justifiable where there is a direct link to the role (which the Tribunal thought there clearly was here).

What do you need to be doing now?

Review the reason why you may need tests in your organisations and the adjustments you make for disabled employees, particularly those around taking assessments. 

This commentary has been prepared for the purpose of an article only. It should not be regarded as a substitute for taking legal advice.