Avoiding disability discrimination in recruitment

Employers’ recruitment procedures are becoming increasingly competitive and sophisticated.  Many employers now require job applicants to undertake tests during the recruitment process, for example, psychometric tests or written tests.

Whilst these tests are daunting for most job applicants, they may be especially difficult for disabled applicants with learning difficulties or mental impairments, such as dyslexia or dyspraxia, which may ultimately lead to those applicants being unsuccessful. In that scenario, an employer may find itself facing a discrimination claim, as the Government Legal Service (GLS) recently did when it required an applicant with Asperger’s Syndrome to sit a psychometric test.

Before we get into the specifics of that case, it is helpful to remember the key law in this area.

The Equality Act 2010 makes it unlawful for an employer to discriminate against or victimise a person in the arrangements the employer makes for deciding who to offer a job. “Arrangements” have a wide meaning and will include the physical arrangements, location and timing of interviews and selection processes.

A job applicant who considers that they have been discriminated against can bring an Employment Tribunal claim against a potential employer. So how can you reduce the risk of discrimination whilst still undertaking a rigorous recruitment and selection process?

In the recent case of The Government Legal Service v Brookes, the GLS was recruiting lawyers in a complex recruitment process, which included a multiple choice Situational Judgement Test (SJT). The purpose behind the SJT was to recruit the best candidate by testing their ability to make quick and effective decisions.

Ms Brookes, an applicant with Asperger's Syndrome, asked GLS to adjust the format of the SJT (allowing her to instead provide short written answers) as multiple choice exercises were difficult for her due to her condition.

GLS agreed to give Ms Brookes longer to complete the SJT, but they refused to adjust the format. Ms Brookes took the test, failed and brought a disability discrimination claim against GLS.

Her particular claims were for failure to make reasonable adjustments and indirect discrimination on the grounds that:

• requiring all candidates to pass the SJT test was a “provision, criterion or practice” (PCP) of GLS;
  
  
• this put her and others with Asperger's Syndrome at a particular disadvantage; and
  
  
• whilst GLS had a “legitimate aim” behind the PCP (i.e. to test applicants’ ability to make effective decisions), the SJT test was not a “proportionate” means of achieving that aim, as GLS could have achieved its aim in a fairer and less discriminatory way.

Ms Brookes’ claims succeeded in the Employment Tribunal and also in the Employment Appeal Tribunal.

What does this mean for you or your business?

The above case serves as a useful reminder that using aptitude or other tests as part of a recruitment process may discriminate against particular individuals (such as disabled individuals). Employers should, therefore, consider whether adjustments may be required.

Allowing a disabled applicant extra time to complete a test (as GLS did) is often a fall back adjustment made by employers. However, other adjustments may also need to be considered, such as:

• Providing written instructions in an accessible format.
  
  
• Permitting a disabled person the assistance of a reader or scribe during the test.
  
  
• Allowing a disabled person to take an oral test in writing or a written test orally.
  
  
• Employers may also need to take professional/medical advice regarding any adjustments that might need to be made.

The Equality and Human Rights Commission have provided other helpful guidance in this area, including the following:

• Any tests should correspond to the job being recruited for.
  
  
• The tests should measure as closely as possible the appropriate levels of the skills and abilities included in the person specification.
  
  
• All candidates should take the same test unless there is a health and safety reason why the candidate cannot do so or because a reasonable adjustment is required.
  
  
• Test papers, assessment notes and records of decisions should be kept on file to enable the employer to reflect on the decisions they are taking and to protect itself in the event of a tribunal claim, subject to appropriate limits for retaining those records. 

What should you be doing now?

Review your business’s recruitment processes carefully, and assess what impact, if any, these may have on disabled applicants.

Consider whether any tests imposed on applicants are necessary and proportionate.

Give proper thought regarding how that process might need adjusting, so that disabled applicants are not put at a substantial disadvantage. Simply allowing extra time to complete a test may not be sufficient!

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.