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The recent case of The Government Legal Service v Brookes [2017] UKEAT/0302/16 is a useful reminder of the issues that employers should consider when faced with job applicants who are disabled and who are requesting that adjustments are made to the application process to mitigate the disadvantage caused by their disability or arguing that the process is discriminatory.

 

Where an individual has either applied for a position with the employer, or notified the employer that they may do so, and has made the employer aware that they suffer from a disability the employer may come subject to a duty under the Equality Act 2010 to make reasonable adjustments to such a process. This will arise if it can be said that a provision, criterion or practice (“PCP”) in the recruitment process puts them at a substantial disadvantage in comparison with non-disabled applicants. Furthermore in such circumstances there is also the potential that the relevant PCP may be said to be indirect discriminatory if it puts disabled people (including the applicant) at a particular disadvantage, unless the employer can objectively justify it.

It is useful to compare the recent Brookes case with earlier case of Lowe v Cabinet Office 2203187/2010. In both cases, the Claimant was a job applicant with Asperger’s syndrome.

In Lowe, the Claimant was applying to the fast track entry scheme for the civil service, which involved a rigorous assessment process testing various core competencies, one of which being communication skills. The Claimant was not successful in her application. She argued that the fact that the competencies were applied to all the candidates objectively, with no allowances made for any disabled candidate (such as a lower pass mark), put her at a substantial disadvantage because of her disability. She claimed that various reasonable adjustments should have been made, such as excluding her from the group activity exercise which was used to judge communication skills. Alternatively, she argued that the employer should have altered the way the group activity was carried out by having a facilitator present to help the Claimant engage in the discussion, ignoring negative behaviour linked to her disability, and weighting the core competencies so that there was less emphasis was on communication.

In Brooke, the Claimant also had Asperger’s syndrome. The first stage of the application process for trainee solicitors involved a situational judgment test, which asked applicants a series of multiple choice questions. The test was objective in the sense that it was marked by a computer, rather than involving the subjective judgement of a marker. The Claimant argued that the test put those with Asperger’s syndrome and with other forms of Autistic Spectrum Condition at a substantial disadvantage, and requested that an adjustment be made to the process whereby she was allowed to answer in the form of a short narrative rather than selecting from the multiple choice answers when taking the test. She also claimed that the test was indirectly discriminatory.

The Claimant in Brooke was successful in her claim, whereas the Claimant’s arguments in Lowe were rejected by the tribunal. In Brooke, the EAT upheld the decision that it would have been reasonable for the Government Legal Service to allow the adjustments to the test, and that the Claimant had been indirectly discriminated against. While it was accepted that the ability to make effective decisions was a key requirement of the role this could be done without scrapping or fundamentally changing the test by allowing the Claimant to answer in the form of a short narrative as opposed multiple choice. The method of testing and the competency itself could be separated. The tribunal took into account that similar adjustments had been made for the Claimant while she was at university, and that there was no explanation other than the method of testing put forward why an otherwise clearly competent individual had not passed the test.

In contrast, while the tribunal in Lowe accepted that the PCP, being the requirement to demonstrate excellent communication skills by way of undertaking a group activity put the Claimant at a substantial disadvantage, it decided that the adjustments sought were not reasonable. Senior civil servants are required to effectively communicate on a daily basis, and to completely exempt the Claimant from being tested on this competency would not be practical. The suggested adjustments to the exercise would defeat the purpose of the examination. To discount the scores with regard to communication skills, or to weight them less highly than other competencies, would be tantamount to requiring an employer to hire an unsuitable individual as a reasonable adjustment. The tribunal therefore rejected the claim that there had been a failure to make reasonable adjustments.

These cases demonstrate that it is important to carefully consider any tests or processes when a disabled applicant highlights that they may be at a disadvantage. Employers should take account of what the key requirements of the role are, and whether there is a method of testing for that competence which does not put the applicant at a disadvantage because of a disability. Clearly the adjustment sought in Lowe was more fundamental but the key issue is whether it is possible to distinguish the skills and competencies being tested for (such as communication skills) from the method of testing for them. If this is not possible adjustments are unlikely to be reasonable as they would compromise the effectiveness of the test itself.  In such cases the practice is also more likely to be capable of objective justification  (provided, of course, that the skill in question is a relevant and appropriate one for the employer to require) and therefore also not indirectly discriminatory.  However, it is worth remembering that each case should be considered individually; not every applicant will have the same challenges even if they have the same disability. It can be useful to seek the views of the applicant on potential adjustments; in Brooke, similar adjustments had been made for the Claimant in the past and there the EAT found there to be no good reason why the employer should not make the same arrangement.

If you have any queries about your own recruitment processes, please get in touch with a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

Chambers UK 2106

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