






The decisions

The ET upheld the Claimant’s complaints of disability discrimination and stated that the adjustments she had requested were reasonable.  It concluded that a ‘provision, criterion or practice’ (PCP) (the requirement that all applicants take and pass the SJT test) would place a group of people such as the Claimant at a particular disadvantage compared to those who did not have Asperger Syndrome. The GLS had therefore placed Ms Brookes in particular, at such a disadvantage.

It is worth noting that during the Tribunal hearing, medical evidence was provided to support the argument that multiple choice tests generally placed those with Asperger’s at a particular disadvantage compared to people who do not have Asperger’s, as people with Asperger’s can often ‘lack social imagination’.

The ET further concluded that the indirect discrimination was not justified, as whilst in setting the test the GLS had been pursuing a legitimate aim of testing the competency of applicants’ decision making, the means of achieving their aim were not proportionate – the reasonable adjustment of allowing written answers to be given, should have been allowed.

The GLS subsequently submitted an appeal to the EAT, arguing that the medical evidence provided did not support the conclusion that the Claimant was put at a particular disadvantage, and that the failure to make reasonable adjustments could be justified.

The EAT dismissed the appeal – the Claimant’s psychiatrist had previously made recommendations in relation to her University courses, that a multiple-choice test would not be appropriate for her and the EAT stated that the reasoning given by the ET could not be faulted.   In addition, although the EAT recognised that the GLS did need to test the ability of the candidates to make effective decisions, it ruled that the methods used in this respect were disproportionate to the outcome they were trying to achieve – there were other ways that such abilities could be measured.

What does this Judgment mean for Employers?

As a matter of good practice employers should always ensure that they consider and make reasonable adjustments for disabled candidates. Employers should also ‘go one better’ than this and ask within job application forms whether potential candidates require any such adjustments and if so, what is needed.

Please contact Katharine Kelly on 0151 239 1079 or for advice on what may/may not be deemed a reasonable adjustment.