Recruitment

by Kate Russell

Testing

Many employers use tests to assess skills and aptitudes. This can be very useful for gaining additional information about candidates. However, use appropriate tests and ensure that they are relevant to the job. Where you use psychometric tests, they must be administered and interpreted by a qualified person.

Ensure you offer support to applicants who have a visual impairment or other disability that may adversely affect their performance.

Example

Dyslexia is capable of being a disability. The only question is the degree to which the candidate’s condition affects him. If it is severe enough to affect his ability to carry out ‘normal day-to-day activities’, he will be protected by the legislation. If it is not, then he will not be protected.

Mr Paterson joined the police force in 1983. He had reached a senior level before being diagnosed with dyslexia in 2004. In the course of a promotion examination he complained that he was placed at a disadvantage compared to other candidates who did not suffer from dyslexia.

The EAT found that taking an examination could be considered to be a normal day-to-day activity. It said that employers should interpret ‘normal day-to-day activities’ widely and include activities which are relevant to participation in professional life, and not just more mundane ‘daily’ tasks such as shopping, cooking and cleaning.

In 2017 the EAT concluded that forcing a person with Aspergers to sit a multiple choice test constituted disability discrimination.

Example

Ms Brookes, who has Asperger’s syndrome, applied to the Government Legal Service in 2015 for the role of trainee solicitor. Recruitment to the Government Legal Service involves at the first stage undertaking the multiple choice ‘Situational Judgment Test’ (“SJT”), and then further tests and interviews.

The Government Legal Service published the recruitment timetable in May 2015 and in June 2015 Ms Brookes informed the recruitment team that she had Asperger’s syndrome, requesting that reasonable adjustments be made for her disability. On 30 June 2015 she was told that an alternative test format to that of multiple choice was not available but that other adjustments would be made (such as giving her more time to complete the test).

On 1 July 2015 the recruitment opened. Ms Brookes contacted the Government Legal Service on 28 and 29 July 2015 to complain of the discriminatory impact of the SJT. She took part in the SJT and submitted her answers on 30 July 2015. She was informed on 4 August 2015 that she had not passed the SJT (scoring 12 points when the pass mark was 14).

Ms Brookes subsequently made a claim in the Employment Tribunal against the Government Legal Service for indirect discrimination, failure to make reasonable adjustments, and discrimination arising from disability.

The Employment Tribunal found in Ms Brookes’ favour in respect of her claims for indirect discrimination, failure to make reasonable adjustments, and discrimination arising from disability. In particular, the Tribunal held that there were more proportionate means available to the Government Legal Service than simply imposing the SJT on all applicants.

The Government Legal Service appealed against the Tribunal’s decision on the grounds that:

  • the requirement that Ms Brookes take the SJT did not in fact place her at a particular disadvantage as compared to persons who did not share her disability; and
  • the Tribunal had erred in finding that the use of the SJT by the Government Legal Service was not a proportionate means of achieving a legitimate aim.

The EAT rejected both grounds of appeal by the Government Legal Service, holding that the Tribunal had appropriately applied the law and relevant evidence in coming to its conclusions.

It may be appropriate to use translated versions of a test in the case of candidates for whom English is a second language.

Use tests consistently and do not apply them in a discriminatory way.

Example

Mrs Mallidi, a postal worker of Indian origin, was asked to take a written aptitude test in order to remain in employment, when a number of comparable white employees were given temporary or permanent contracts without having to take a test. When she complained of racial discrimination to her employer, the management failed to investigate the matter seriously. The employment tribunal found this failure to address legitimate complaints to be direct discrimination on grounds of race. She had received ‘less favourable treatment’ than her white counterparts and was awarded £19,757.19 in damages.