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Dispute Resolution Case of the week - Is the requirement to take a multiple choice test discriminatory?

16/06/2017 | ACUMEN BUSINESS LAW

Is the requirement to take a multiple choice test discriminatory?  Potentially yes.
The Government Legal Service v Brookes UKEAT/0302/16/RN


Ms Brookes suffered from Asperger's syndrome, which was held to be a disability under the law. As part of an interview process she was asked to complete a multiple choice style assessment but complained that she was at a disadvantage because of her disability.

When challenged by Ms Brookes, the potential employer, Government Legal Services (GLS), refused to allow her to provide short written answers instead of multiple choice answers.  Although,  as a reasonable adjustment, they did give her extra time to complete the assessment.

What the law says?
If an apparent neutral provision, criterion or practice ('PCP') is applied which is not intended to treat anyone less favourably, but which in practice has the effect of disadvantaging someone with a disability when compared to other people, it will amount to indirect discrimination unless it can be objectively justified.

In this case it was agreed that the requirement for all job applicants to take a multiple choice test was a PCP.  On the medical evidence given it was held that this would disadvantage a person who had Asperger's.  GLS argued that it was a legitimate aim to test the candidates’ ability to make effective decisions under pressure and the assessment style had been proven to test this ability in potential candidates.  The court accepted that this was a legitimate aim of GLS, but said that the way of achieving this aim was not proportionate.  GLS could have a made a reasonable adjustment by allowing written answers to be given. Ms Brookes claim was upheld and she won the right to compensation and GLS were ordered to write an apology letter.

This case highlights the importance of employers taking care to consider and make reasonable adjustments for disabled candidates. It is advisable to ask on application forms whether the applicant requires any reasonable adjustments to assist them during a recruitment process and to consider any suggestions made or adjustments which could be made.  If an adjustment is requested by an applicant which doesn’t adversely affect  the recruitment process and can be reasonable adopted it is advisable that an employer considers making any such adjustment.

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