An Employment Appeal Tribunal (EAT) has confirmed that a job applicant with Asperger’s Syndrome, who failed a ‘situational judgement’ test, suffered indirect discrimination.
Graduate, Terri Brookes’ hopes of working for the Government Legal Service (GLS) as a trainee solicitor were dashed when she failed the test during the first stage of the recruitment process.
Ms Brookes, who also has dyslexia and post-traumatic stress syndrome claimed that the cumulative impact of all three conditions meant that she was unable to complete multiple choice tests with a ‘social imagination element’, for example: “What would you do if…”
She contacted the GLS to request reasonable adjustments to the test, suggesting that she could instead submit written answers to the questions. Her request was not granted, so Ms Brookes sat the test but scored insufficient marks to allow her to progress to stage two of the recruitment process.
Ms Brookes made a formal complaint to the GLS citing disability discrimination but when her complaint was rebuffed she lodged a claim with the employment tribunal, which she won.
The GLS fought the decision, but the EAT has now refused permission for their appeal and has ordered them to apologise to Ms Brookes and pay her compensation for “injury to feelings.”
Undeterred by the experience, Ms Brookes has said that she intends to apply once more to the GLS when training applications open this summer.
Lara Murray, an Associate with Palmers who specialises in employment law, said: “This case, which many have referred to as a ‘David and Goliath’ style battle against a large government body, illustrates the need for all employers to be aware of indirect discrimination, not only in the workplace amongst existing employees, but also during the recruitment process.
“The Equality Act 2010 not only protects existing employees but also job applicants and covers areas including application forms, interview arrangements and aptitude or proficiency tests.
“If a candidate can prove, as this applicant did, that the recruitment process put them (as compared to non-disabled candidates) at a substantial disadvantage because of their disability, then they can bring a case complaining of indirect discrimination.”
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