Interviewers take Note: Disadvantage and Discrimination in Selecting Employees

Employers who rely on multiple choice testing for candidates need to take heed of a case concerning the indirect discrimination of a job candidate who suffered from Asperger syndrome.

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The case of The Government Legal Service v Brookes concerned the issue of whether an employer discriminated against a job applicant with Asperger syndrome when asking the applicant to undergo a multiple choice test as part of the recruitment process.

The case looked at the definition of indirect discrimination, discrimination arising out of a disability, and the employer’s duty to make reasonable adjustments for a disabled employee.

Indirect discrimination occurs when an employer’s acts or policies which are not intended to treat people less favourably nevertheless have the effect of disadvantaging a group of people with a protected characteristic.

This case involved an employer applying a provision criterion or practice (PCP), which was a multiple choice recruitment test, to both an individual who had a protected characteristic (in this case Asperger syndrome) and also to an individual who did not have a protected characteristic.

If a PCP puts an individual with a protected characteristic at a disadvantage it will be considered as indirect discrimination unless it can be objectively justified as being a proportionate means of achieving a legitimate aim. In this case it was claimed that the requirement to take the multiple choice test disadvantaged the candidate with Asperger syndrome. The question for the Tribunal was whether the employer was justified in insisting on a similar test for all candidates in the selection process.

Discrimination arising from a disability results where an employer treats the individual unfavourably because of something arising in consequence of the individual’s disability and where the treatment cannot be objectively justified.

Employers are under a duty to make reasonable adjustments to working practices to help job applicants and failing to make these adjustments is a form of discrimination under the Equality Act 2010.

In this case the candidate had requested an adjustment to the multiple choice test and asked to answer the questions in the test by giving short written answers; the request was refused.

It was found by the Tribunal that although the multiple choice test served a legitimate aim of recruiting the best candidate by testing their ability, it was not proportionate and there were other ways that the candidate could have been tested. The less favourable treatment arose because of the candidate’s disability.

The Tribunal ordered the employer to pay compensation to the candidate and made a recommendation that the employer issue a written apology. It also recommended that the employer review their recruitment processes so that candidates with disabilities are offered greater flexibility.  The Tribunal’s decision was upheld by the Employment Appeal Tribunal.

The case serves as an important reminder for potential employers that discrimination claims can be brought at the point of recruitment. It is also important for employers who use multiple choice tests to consider whether their testing procedure is putting disabled candidates at a disadvantage and to consider making adjustments to their procedures.


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