GLS v Brookes: Discriminatory recruitment practices

A disabled law student has succeeded in her claim that the Government Legal Service (GLS) discriminated against her in her application for a training contract.

Terri Brookes is a mature law student, and in spring 2015 she applied for a position as a trainee solicitor with the GLS. She has Asperger’s syndrome, and during her university career this necessitated adjustments to be made for her.

The GLS offers 35 training places a year, for which it receives thousands of applications. The recruitment procedure initially requires all candidates to pass a multiple choice situational judgement test (SJT). This involves psychometric testing, and tests candidates’ ability to make judgments. There is no time limit for the test, which is one of three tests candidates must pass before interview.

Social imagination

Ms Brookes contacted the GLS recruitment team and requested an adjustment to take account of her Asperger’s syndrome. Specifically, she informed them that she lacked social imagination and would therefore have difficulty in imagining herself in different situations as required by the test. She asked if, rather than filling in multiple choice answers, she could provide the GLS with short written answers to the problems posed.

Despite Ms Brookes contacting the GLS on several occasions during 2015, they refused to allow any alternatives to the test. Ms Brookes made clear she considered this to be disability discrimination, to no avail. She sat the test at the end of July 2015, and was informed shortly afterwards that she had scored 12 points, two short of the 14 needed for her application to continue.

Ms Brookes brought a claim of disability discrimination before East London Employment Tribunal, on three different legal footings, although there was significant overlap between them: (1) indirect discrimination; (2) discrimination arising from a disability; and (3) failure to make reasonable adjustments.

The tribunal had to consider whether the GLS policy put candidates with Asperger’s syndrome at a disadvantage, and whether it had put Ms Brookes at a disadvantage. The tribunal heard from two psychiatrists, and concluded that both conditions were met. They then considered whether the GLS policy could be justified, which required a finding that it was a proportionate means of achieving a legitimate aim. Although the policy clearly had a legitimate aim, the tribunal found the means of achieving it were not proportionate, and the adjustment Ms Brookes requested was reasonable.

Reasonable request

Ms Brookes therefore succeeded in her claim before the tribunal, and the GLS was ordered to pay her £860 compensation (which was all she requested). The tribunal recommended that the GLS apologise to Ms Brookes in writing and review its recruitment procedures with a view to providing greater flexibility for disabled applicants.

The respondent appealed to the Employment Appeal Tribunal. First, they argued that Ms Brookes had failed to show the test put her at a particular disadvantage, referring to the tribunals’ own finding the medical evidence was ‘inconclusive’. The EAT disagreed, finding that the tribunal had considered only that medical evidence was necessarily nuanced and could not ultimately address why Ms Brookes had failed to achieve the pass mark. The tribunal were entitled to find that the medical evidence, taken with the other evidence, showed Ms Brookes was put at a particular disadvantage.

Second, the GLS argued that the requirement to pass the SJT was justified, because it tested the skills needed to perform the job, and that as a matter of principle that should generally be treated as justified, and requiring no adjustments for disabled candidates. The GLS relied on evidence provided by those involved in the recruitment process, which stated the SJT was particularly useful as a means of recruitment, and there was a close correlation between how candidates performed during this test, and how they later performed as trainees. The EAT rejected the argument based on principle, and stated the tribunal were entitled to consider all the evidence and find the policy was not proportionate, and they had provided adequate reasons for that finding.

Overall, the EAT concluded that the appeal raised no point of law, and was an attempt by the GLS to re-argue the case. The GLS have since reviewed its recruitment methods to allow candidates an alternative to sitting the multiple choice SJT; Ms Brookes intends to reapply.

Although this case does not change the law, it shows the diverse ways in which disability discrimination can arise.

Anna Macey is a barrister at Kings Chambers

@Kings_Chambers

www.kingschambers.com

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