The Government Legal Service v. Brookes

A tribunal may find that a requirement to undertake and pass a multiple-choice assessment places a disabled applicant at a particular and substantial disadvantage on the totality of the evidence. Medical evidence which is nuanced or inconclusive does not prevent that finding where the tribunal can evaluate it with the applicant’s individual circumstances and other evidence.

A competency assessment may pursue a legitimate aim, but its particular format must still be a proportionate means of achieving it. The duty of reasonable adjustment may require an alternative assessment format where it would test the relevant competency without imposing the disabled applicant’s disadvantage under the Equality Act 2010.

The claimant, who had Asperger’s syndrome, applied for a trainee lawyer role with the Government Legal Service. All applicants had to take and pass an online multiple-choice Situational Judgment Test as the first stage of a highly competitive process. She requested permission to provide short narrative answers instead, but the request was refused and she did not achieve the pass mark.

An Employment Tribunal upheld claims of indirect discrimination, failure to make reasonable adjustments and discrimination arising from disability. It awarded compensation and made a recommendation. The Government Legal Service appealed, alleging that findings of individual disadvantage and lack of justification were perverse or unsupported by the evidence.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the requirement to take and pass the online multiple-choice test placed the claimant at a particular disadvantage for the purposes of section 19(2)(c), and at a substantial disadvantage for the reasonable-adjustments claim.

2. The finding rested on a proper cumulative assessment. The Tribunal could take account of the claimant’s disability profile, her individual academic and work history, previous adjustments, expert evidence, her score close to the pass mark, and the absence of another explanation for her performance. It was also entitled to reject the submission that the fact that some people with Asperger’s might perform well in a multiple-choice format precluded a finding of disadvantage to this claimant.

3. The medical evidence was described as inconclusive only because it was nuanced and did not establish a single certain explanation for failure. That did not prevent the Tribunal from reaching a conclusion on the balance of probabilities using all the evidence. Indeed, it was sufficient that the format made passing substantially more difficult; the Tribunal’s further finding that Asperger’s caused the failure did not undermine its reasoning.

4. The test pursued the legitimate aim of assessing effective decision-making. However, the Tribunal lawfully concluded that the multiple-choice format was not inseparable from that competency and that refusal of an alternative narrative format was disproportionate. It had balanced the employer’s interests in consistency, comparability, objectivity, expense and administration against the claimant’s disadvantage. It was entitled to find that the refusal was made on principle rather than practical grounds.

5. The Tribunal’s distinction of Lowe v Cabinet Office, where the assessment method and competency had been treated as inseparable, disclosed no error of law. The section 15 claim stood or fell with the other discrimination findings and therefore also succeeded.

• Employment Appeal Tribunal: dismissed the Government Legal Service’s appeal: [2017] UKEAT 0302_16_2803.
• Employment Tribunal: in a reserved decision dated 27 June 2016, upheld the claimant’s claims of indirect discrimination, failure to make reasonable adjustments and discrimination arising from disability. It later refused reconsideration.