Was an applicant with Asperger Syndrome put at a particular disadvantage by a multiple choice test? Was this form of assessment justified?

Background

We report on a recent decision of the Employment Appeal Tribunal in the case of Government Legal Services v. Brookes.

Ms Brookes was applying for a solicitor’s training contract with GLS. These positions are difficult to achieve.

The notoriously difficult test firstly required applicants to take an on-line, multiple choice, ‘situational judgment’ assessment. This was aimed at assessing decision making capabilities.

Ms Brookes wrote to GLS explaining that she suffered from Asperger Syndrome and that her condition amounted to a disability and that it meant that she “lacked social imagination and so had difficulties in imaginative and counter-factual reasoning in hypothetical scenarios”. More significantly from the point of view of this case, she also argued that this affected her ability to complete the on-line multiple choice questionnaire and that a reasonable adjustment would be for her to provide short narrative answers instead. The request was refused, Ms Brookes narrowly missed the required score at the multiple choice stage, and

The EAT agreed that the multiple choice format did put Ms Brookes at a particular disadvantage because of her disability, and that it was not justified; a reasonable adjustment would have been to allow her to provide the answers in the manner she requested.

Implications

It is often difficult to assess whether or not a particular indirectly discriminatory provision is legally justified. In order to provide good proof of justification, employers would be well advised to be able to show that they have considered alternatives. Where there are no alternatives and there is a legitimate reason for the measure in question, it should be justified, but this does require some creative thinking. In this case, the alternative was suggested by the claimant, but this will not always be the case.