REWARD INSIGHT
Disability and whistleblowing
Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases
The Government Legal Service v Brookes The Employment Appeal Tribunal (EAT) has examined a case where a job applicant was placed at a disadvantage during the recruitment process because of a disability, namely Asperger’s. The employer is a national legal organisation which has a competitive recruitment process for lawyers who wish the join the service. Competition for jobs is very high and they took the step of introducing psychometric testing as part of their recruitment process in 2010. This testing includes a situational judgment test (SJT) which is made up of multiple-choice questions. The claimant was a law graduate who was diagnosed with Asperger’s in 2009. The timetable for the trainee solicitor application process was published in May 2015 and the claimant contacted the recruitment teams in June 2015 requesting adjustments on the grounds of her disability. She requested that she should be allowed to answer the questions in the SJT by submitting short
written answers. The claimant was told that alternatives were not allowed but time allowances were and there would be a guaranteed interview if she passed all three recruitment tests. The recruitment process opened in July 2015 and the claimant again contacted the employer expressing her concerns about the discriminatory impact of the tests. The claimant sat the SJT and submitted it online. She was informed in August that she had not passed the test; she only scored twelve points and the pass mark was fourteen. The claimant made claims of indirect discrimination and a failure to make reasonable adjustments. The Employment Tribunal (ET) examined the indirect discrimination claim and found that the employer had knowledge of the disability at the relevant time and the provision, criterion or practice (PCP) was the requirement for all applicants to take and pass the online SJT. They found that the PCP would place a group of people with Asperger’s at a disadvantage compared with others who did not have the disability
and found that the claimant was placed at a disadvantage herself. To find the individual disadvantage, the ET looked at factors such as the claimant fitted the profile of those who would ordinarily be disadvantaged based on medical expert advice, she was intelligent and capable and committed to a legal career, and there was no alternative explanation as to why she didn’t perform better. The ET looked at whether Government Legal Services could justify the discriminatory effect of the PCP. They found that the employer had a legitimate aim as the test was used to examine a fundamental competency required by the trainees as they needed the ability to make effective decisions. However, the ET decided that the means of achieving the legitimate aim were not proportionate and the claim of indirect discrimination succeeded. The decision was appealed. The EAT found that the ET was entitled to reach their decision that the claimant herself was placed at a disadvantage by the PCP. They judged that they were correct to take in to account relevant features of the claimant’s demeanour, background and experience when making this assessment. In fact, the EAT found that the ET did not have to go
...means of achieving the legitimate aim were not proportionate...
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| Professional in Payroll, Pensions and Reward | July/August 2017 | Issue 32
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