Protecting Your Recruitment Process from Indirect Disability Discrimination Claims
Following the Employment Appeal Tribunal (EAT) ruling of the recent Government Legal Service (GLS) vs. Brooks case, employers may need to consider whether their recruitment process affects applicants with certain disabilities and whether it could cause legal issues later down the line.
In the case a law graduate with Aspergers syndrome successfully appealed against the GLS, after the tribunal ruled that she had been discriminated against by being asked to take a multiple choice situational judgement test.
The case is thought to be one of the first of its kind to succeed at EAT level, in which a workplace policy that applies to all employees leaves a disabled person at a disadvantage.
Terri Brooks, who started the case during the first year of her LPC, took the test as part of the first stage of the recruitment process for the Government Legal Service. She requested that the test be amended so she could submit short written answers to the question as the multiple-choice element left her at a disadvantage.
Ms Brookes said “These tests ask people to predict the future. If you ask someone without Asperger’s what they’d do in a given situation, chances are they could give you an idea of what they may or may not do. I can’t do that.”
While the GLS did amend the test to make time allowances they did not allow Ms Brookes to use an alternative test format. They argued that the test format was a proportionate method for determining the best candidates.
Ms Brookes took the multiple-choice test in July 2015, however she missed the passing score by just two marks, which was enough to have her application rejected.
Ms Brookes represented herself at Tribunal and won her case. The Tribunal found no other identifiable reason as to why Ms Brookes had failed the test other than her disability and that, by asking her to take the test as it stood, the GLS had indirectly discriminated against her, treated her unfairly and failed to make reasonable adjustments to take her disability into account.
The GLS appealed but the EAT upheld the original ruling and refused permission to appeal the case any further.
Do we need to change our recruitment processes following EAT ruling?
This case forces us to consider how we recruit, what methods we use and whether they are indirectly discriminative to people with certain protected characteristics. It highlights the importance of considering reasonable adjustments for disabled candidates, especially if your recruitment process includes testing such as this.
How can I avoid a similar discrimination issue in my recruitment process?
As employers, you are liable for discrimination claims right from the point that you advertise a role, not just once the employee commences work.
It might not be necessary to review recruitment processes overall, however, companies should ensure that on application, a candidate is asked whether they require any reasonable adjustments. If they indicate that they do, then the employer should enquire what is required and do all that they can to make the adjustments requested.
If you are unsure as to whether you are at risk then please don’t hesitate to get in touch with us. We can advise you on putting in place reasonable adjustments to accommodate employees – whether at the point of application or when they have joined your business.
In some cases, we can offer you free guidance. For our Watertight HR & Legal clients some of this work may be included in your fees so please ask. If you are not a Watertight client and would like a quote, contact us on firstname.lastname@example.org or 0114 3032300.