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Employment Update: Are your Recruitment Practices Discriminatory?

Published on 10 May 2017 | Modified on 10 May 2017

Written by Stacey Bennett
Commercial Solicitors

The Employment Appeal Tribunal (EAT) has ruled that a psychometric test used by the Government Legal Service (GLS) as part of its recruitment process was directly and indirectly discriminatory.

The Facts

GLS required potential recruits to complete an online multiple choice psychometric test.  One applicant, Ms Brookes, asked if it was possible to provide her answers in an alternative format owing to difficulty in providing multiple choice (i.e. tick box) answers because of her Asperger’s syndrome. GLS stated that this was not possible; Ms Brookes completed the test online as required and did not progress to the next stage of the recruitment process having scored only 12 out of 22 rather than the required 14. Ms Brookes subsequently brought a claim against GLS for direct discrimination, indirect discrimination and failure to make reasonable adjustments.

The Decision

Ms Brookes was successful in all three of her claims at both Employment Tribunal and on appeal. The first instance tribunal and EAT were not persuaded by GLS’s arguments that reasonable adjustments had been made (i.e. more time was given to disabled applicants and such applicants were guaranteed an interview if successful in the tests). The tribunals were also unimpressed by GLS’s claim that the rationale for requiring answers to be given online was that the data collected could be processed without human intervention which was necessary given the very high volume of applications it received.

The EAT concluded that whilst the test was in place to pursue a legitimate aim i.e. to test the competency of candidates, the means used to assess such competency were not proportionate.

The EAT awarded Ms Brookes £860 in compensation and required GLS to provide an apology.

The Implications

It is worth noting that the EAT did not consider the use of psychometric tests discriminatory in and of itself. Rather, the problem arose because of GLS’ refusal to accept answers in another format despite Ms Brookes’ request.

The lesson for employers is this:

Consider whether your recruitment processes may directly or indirectly disadvantage a potential recruit because of a physical or mental impairment.

Potentially discriminatory practices must only be used if they are a proportionate means of achieving a legitimate aim. Employers would also be well-advised to consider adjustment requests carefully; taking a hard-line in response to such requests carries with it the risk of facing an employment claim.

If you need guidance in connection with your recruitment practices, please contact the employment team on 01270 625478.

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