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Getting the answer right and avoiding disability discrimination

Being inflexible about multiple choice testing in a recruitment process is a risky thing for an employer to do. The recent Employment Appeal Tribunal case of Government Legal Services v Brookes shows us why.

Ms Brookes who has Asperger’s syndrome applied to the GLS to become a trainee solicitor. The first stage of the GLS’ recruitment process described as “fiendishly competitive” involved an online multiple choice test to assess effective decision making skills. The pass mark was 14/22.

Understanding disability

Ms Brookes asked to be able to provide her answers by way of short narratives to each question. There is medical evidence that those with Asperger’s syndrome can find imaginative reasoning difficult in hypothetical scenarios.

The GLS turned down Ms Brookes’ request. It considered that multiple choice testing was useful in that there was a clear right or wrong answer to a question and the test could be marked by computer. Ms Brookes went on to score 12 in the test which meant the end of the road for her application and hopes of becoming a trainee solicitor at GLS.

Making reasonable adjustments

Whilst the GLS argued that multiple choice testing was needed to measure an important skill for trainee solicitors (effective decision-making) the Tribunal decided that there were less discriminatory ways to measure this skill. It also found that allowing Ms Brookes to provide her answers in a narrative format would have amounted to a reasonable adjustment.

Asperger’s syndrome and recruitment

One of the arguments made by the GLS in its attempt to deny disability discrimination was that not all persons with Asperger’s syndrome would have difficulties with a multiple choice test. This was not a convincing argument as it was found that there was group disadvantage and that the same disability may affect different people in different ways.

The Employment Appeal Tribunal found Ms Brookes to be “intelligent, resourceful and capable”. Certainly if her self-representation at the Tribunal and Employment Appeal Tribunal are anything to go by, it seems she would have made a very good trainee solicitor.

If there is one practical thing to take away from this case, it is the importance of getting medical input as early as possible if an employer is in doubt about the impact on a disabled employee of a particular policy or practice in the workplace. In the absence of understanding, there is considerable risk.