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Psychometric testing can be disability discrimination

In The Government Legal Service v Brookes Ms Brookes, who suffered from Asperger's syndrome claimed that she had been discriminated against because of a refusal by the Service to allow her to answer a multiple choice test in the form of short written answers.  The claim before the Tribunal was of indirect discrimination, discrimination arising for a disability and a failure to make reasonable adjustments.

The Claimant, who represented herself before both the Tribunal and later at the EAT, had applied for a legal traineeship with the Service in July 2015.  She requested adjustments to the test but these were refused.  She subsequently undertook but failed the testing.

The Employment Tribunal subsequently found that the Claimant had been subject to a PCP - the requirement to pass the multiple choice test - that the PCP put those who suffered from Asperger's at a disadvantage, and the claimant herself was put at such a disadvantage.  While the use of the test served a legitimate aim - ensuring applicants could make effective decisions - the means of achieving the aim were not proportionate to it.  The claims of indirect discrimination, discrimination arising from disability and failure to make reasonable adjustments all succeeded.

The EAT agreed, finding that the Asperger's syndrome did put the Claimant at a disadvantage.  While they acknowledged the need for the Service to test applicant's ability to make effective decisions they also found that psychometric testing was not the only way in which this could be achieved.

This case highlights the need for employers to consider whether there are less discriminatory ways of achieving an aim that may have a discriminatory consequence for those with disabilities, irrespective of the fact that the aim itself is wholly legitimate.