Psychological aptitude tests and disability discrimination

Requiring a job applicant with Asperger syndrome to sit a multiple choice aptitude test was disability discrimination

In Government Legal Service (GLS) v Brookes, the EAT has upheld the decision of an employment tribunal that, in requiring a job applicant with Asperger syndrome to sit a multiple choice, ‘situational judgement test’ at the first stage of its recruitment process, the GLS subjected her to indirect disability discrimination and discrimination because of something arising in consequence of her disability.

The Appeal Tribunal also upheld the finding that, by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options, the GLS failed in its duty to make reasonable adjustments.

Situational Judgement Tests are a type of psychological aptitude test that assesses judgement required for solving problems in work-related situations. They present candidates with hypothetical and challenging situations that employees might encounter at work. In response to each situation, candidates are presented with several possible actions (in multiple choice format) that could be taken when dealing with the problem described.

Ms Brookes Narrowly missed the required pass mark on the test.

Medical evidence led the tribunal to conclude that GLS had indirectly discriminated against Ms Brookes.  It required all candidates to sit and pass the test in the multiple choice format and that placed candidates with Asperger syndrome at a particular disadvantage compared with those who did not have it.  This was because of a lack of social imagination that causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios.

As well as indirect discrimination GLS had discriminated against Ms Brooke for a reason arising from her disability.  It rejected her for the role because she failed the test but she failed the test because of her Asperger syndrome.

The tribunal found that whilst GLS had a legitimate aim (testing competency) there was a less discriminatory alternative (the adjustments proposed by Ms Brookes).