Recruitment methods need to be adapted for disabled candidates

A re-write of traditional recruitment methods may be needed following an Employment Appeal Tribunal (EAT) which ruled that a woman with Asperger’s syndrome was discriminated against when she was asked to take a test as part of a recruitment process.

This was a claim for indirect disability discrimination which occurs when a workplace rule or policy leaves a disabled person at a disadvantage.
The claimant represented herself in the case, and explained that she was asked to take a multiple-choice test as part of the first stage of her application to the Government Legal Service (GLS), whose recruitment process has several thousands of applicants applying for just 35 places per year.

The claimant argued that she should have been allowed to submit short written answers to the questions, as the black and white nature of the multiple-choice test placed her at a disadvantage as a result of her Asperger’s syndrome. She took the multiple choice test but was told she had failed and that her job application would not be progressed any further. She scored 12 marks out of a possible 22, and needed 14 or more to pass.

An employment tribunal ruled last year that there was no reason to identify why she had failed and agreed that she did not pass the test because of her disability. By asking her to take the test, the GLS had indirectly discriminated against her, had failed to make reasonable adjustments that took into account her disability, and had treated her unfavourably.

The GLS appealed but the EAT agreed with the original ruling and refused permission to appeal the case any further.

This is a significant case because testing methods were prevalent across all industries and employers needed to make sure they can demonstrate that their recruitment processes are a “proportionate means” of achieving a legitimate aim, especially if their practices were likely to put a particular group at a disadvantage. Flexibility and a willingness to find solutions are essential to avoid this type of litigation and our advice is always to include elements other than ONLY testing as part of the decision-making process, as well as offering reasonable adjustments to candidates with disabilities – such as providing extra time to complete testing.

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