Indirect discrimination arises when an employer applies a policy to everyone, which in practice disadvantages a group of people with a particular protected characteristic, and that policy cannot be objectively justified. For example, a minimum height requirement for a job where height is not relevant to carry out the role may well be indirect sex discrimination.
In a recent case, the Employment Appeal Tribunal (EAT) considered whether the use of a psychometric test in a recruitment process, constituted indirect disability discrimination.
Mrs Brookes applied to the Government Legal Services (GLS) for a trainee solicitor role and requested that, on account of her Asperger’s, she be allowed to provide short narrative answers to the psychometric test rather than selecting multiple choice answers. GLS stated that no other format was available and Mrs Brookes ultimately failed the test.
She brought successful claims for indirect discrimination, failure to make reasonable adjustments and discrimination arising from her disability. GLS appealed the decision.
The EAT dismissed the appeal. On the medical evidence available, they considered that the tribunal was entitled to find that the test format did put Mrs Brookes at a disadvantage when compared to candidates who did not have Asperger’s. Secondly, the EAT found that, although it would not be ideal for GLS to run two methods of assessment in parallel, the ET had correctly determined that this was outweighed by the disadvantage suffered by Mrs Brookes. Their refusal to offer an alternate test format could not be objectively justified.
This decision will be of particular interest to employers who use, or are considering using, multiple choice testing in their recruitment process. The case confirms that employers need to consider making adjustments to the format of these tests for those candidates with a given condition. As medical evidence on this point can often be inconclusive it may be pertinent for employers to adopt a cautious approach to any request for an alternative test format.
Employers should also be aware that the need to make adjustments to their recruitment processes is not limited to the use of psychometric tests. An unbending recruitment process that insists on interviews at certain times of day or requires particular qualifications, without good reason, could also be found to constitute unlawful indirect discrimination.