Are your recruitment methods discrimination proof?

12 May, 2017
by: Cripps Pemberton Greenish

Overview

Objective approaches used within a company’s recruitment process, for example the use of psychometric testing methods, have come under scrutiny this week in light of the recent ruling in the case of Government Legal Service v Brookes (Brookes). 

As we find ourselves in the midst of Mental Health Awareness Week (MHAW), and with advocates like The Duke and Duchess of Cambridge supporting the need to stamp out the taboo that surrounds mental health, we recommend that employers review their recruitment processes and consider whether they put at a particular disadvantage any applicants who have Asperger’s syndrome or other developmental disabilities.  In some cases recruitment processes may require modification where applicants have a specific learning difficulty such as dyslexia.

The decision in Brookes

The case of Brookes relates to a candidate with Asperger’s Syndrome who applied for a training contract with the Government Legal Service (GLS).  The candidate asked GLS if, due to her Asperger’s, she could submit short written answers as a disability adjustment to the multiple choice Situational Judgement Test (SJT) as part of the recruitment process.  She was refused and she claimed indirect disability discrimination and a failure to make reasonable adjustments, after taking and narrowly failing the SJT.  The tribunal found in the candidate’s favour.

The Employment Appeal Tribunal (EAT) upheld this decision on appeal.  The requirement for all candidates to take and pass the SJT was a ‘provision, criterion or practice’ which put a group of disabled people such as Brookes at a substantial disadvantage compared to candidates who did not have Asperger’s.  While the GLS needed to test the core competency of ability of its candidates to make effective decisions, a psychometric test was not the only way to achieve this and so its defence of objective justification failed.  A relevant factor in the decision was that Brookes’ psychiatrist had made previous recommendations (in relation to her university courses) that a multiple choice format test would not be appropriate for her.

Implications

The use of objective tests that use standard multiple choice setups may need to be adjusted for those candidates who have a disability such as Asperger’s.  Although the medical evidence was inconclusive in this case, the tribunal found in the claimant’s favour regardless, and it is highly recommended that employers err on the side of caution when utilising objective tests in their recruitment processes when there are disabled applicants.  Employers should be prepared and willing to make adjustments to these standard tests if required to do so to prevent discrimination claims from arising.

In the broader context of mental health at work, difficulties and challenges can often be overlooked by employers and colleagues alike, but the importance of identifying any underlying issues is paramount in not only improving the working environment, but also preventing any potential disability discrimination claims that may arise.  It is essential to ensure there are open lines of communication with employees, to provide training for managers on spotting the signs of poor mental health at work, and conducting risk assessments to identify and reduce risks and hazards at work that may act as catalysts to the development of mental health problems among their employees.