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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> The Government Legal Service v. Brookes [2017] UKEAT 0302_16_2803 (28 March 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2017/0302_16_2803.html Cite as: [2017] IRLR 780, [2017] UKEAT 0302_16_2803, [2017] UKEAT 302_16_2803 |
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| At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE KERR
BARONESS DRAKE OF SHENE
MR P GAMMON MBE
GOVERNMENT LEGAL SERVICE | APPELLANT |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
| For the Appellant | MR NIAZI FETTO (of Counsel) Instructed by: Government Legal DepartmentOne Kemble Street London WC2B 4TS |
| For the Respondent | MS TERRI BROOKES (The Respondent in Person) |
SUMMARY
DISABILITY DISCRIMINATION - Disability related discrimination
DISABILITY DISCRIMINATION - Reasonable adjustments
DISABILITY DISCRIMINATION - Justification
There was no error of law in the Tribunal's decision that the Claimant, who has Asperger's syndrome, was discriminated against by being required to sit a multiple choice "Situational Judgment Test" as the first stage in a competitive recruitment process for lawyers wishing to join the Respondent.
The Tribunal's decisions that the Respondent had indirectly discriminated against the Claimant, had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability, were unassailable and correct in law.
THE HONOURABLE MR JUSTICE KERR
Government
Legal
Service.
legal
organisation serving the
legal
needs of the
government.
In 2010, it introduced psychometric testing as part of its recruitment practices. Unlike many private sector
legal
organisations, it is prepared to recruit candidates with a 2:2 degree, but competition for jobs is intense: several thousand applications for about 35 places each year.
(1) The Tribunal itself said the medical evidence was "inconclusive" and should have decided that such "inconclusive" medical evidence could not properly ground a finding that the Claimant was put by the PCP at a particular disadvantage compared to non-disabled candidates.
(2) Mr Fetto took us to passages in the medical evidence. He submitted, in effect, that the Employment Tribunal had illegitimately reasoned from the general to the particular and had wrongly found that, because people with Asperger's generally may suffer disadvantage from such a PCP, the Claimant herself did; whereas, not all do; and some people with Asperger's actually do better using the multiple choice format of the psychometric tests.
(3) He submitted that the Tribunal had impermissibly speculated on the issue of particular disadvantage by reference to its assessment of the Claimant in the Tribunal; it "substituted its own assessment for the SJT", in Mr Fetto's phrase.
(4) The Tribunal did not properly assess the statistical evidence, which was based on a very small sample of self-declared candidates with ASC, overlooking the point that such evidence may not assist when the sample of people is very small.
(5) The Employment Tribunal, on the other hand, rejected statistical evidence that favoured the Respondent, to which it ought to have had regard. That statistical evidence supported the proposition that no other candidate professing to have ASC or Asperger's had requested an alternative test method, as the Claimant had.
(6) The Tribunal had wrongly reasoned from the absence of an alternative reason for the Claimant's failure to pass the test, that the failure was likely to be attributable to her disability. She scored 12 out of a possible 22, with the pass mark being set after the competition at 14.
(1) The Claimant's disability, the Respondent's knowledge of it and the application to her of the PCP were all accepted (see paragraphs 23 and 24).
(2) The Tribunal found that there was a "group disadvantage" within section 19(2)(b), contrary to the Respondent's then submission (see paragraphs 25 to 28), against which there is no appeal.
(3) The Employment Tribunal then turned at paragraph 29 to the issue of personal disadvantage to the Claimant. It began by noting Professor Critchley's view that some people with autism may still perform such tests well, on account of typically logical thinking, and Dr Rajpal's view that it was not possible for him to comment specifically on the position of the Claimant as he had not met her.
(4) The Tribunal went on to find, however, that the PCP did put the Claimant at a personal disadvantage and relied on the following points:
(a) that the Claimant fitted the profile of those who would ordinarily be disadvantaged according to both experts, albeit that not all would (she lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios);
(b) she is "intelligent, resourceful and capable" and was clearly committed to a career with the Respondent if she could achieve that;
(c) she had experience as a paralegal, which would have given her experience of practical decision making;
(d) there was no alternative explanation advanced as to why she did not perform better in the SJT than her mark of 12;
(e) that others had not requested the adjustment did not mean that she was not personally disadvantaged nor would this factor tend to that conclusion, since everyone is different and the same disability may affect different people in different ways;
(f) of the small number of those who had in the process declared themselves as having ASC or Asperger's, only one had passed the test;
(g) the Claimant had been considered by Professor Critchley as an individual at earlier stages in her academic career; he had focused on her personal position and had recommended specific adjustments; those adjustments had been made, and that was relevant to her position as an individual;
(h) Professor Critchley had specifically said at an earlier stage that ambiguous lines of questioning, for which explicit examiner actions had not been given, would be unsuitable and that exams without reference materials would not be suitable; and
(i) the Claimant had been found to require adjustments in a course that she was undertaking at the London Metropolitan University (LMU) as at January 2016, as was clear from a document that was before the Tribunal;
(j) it was made plain that LMU, for its part, accepted the proposition that where applicable and appropriate, multiple choice questions should be replaced with questions requiring a short written answer.
"would have been less able than somebody who does not [have] Asperger's to do this [SJT] test. This test would have placed people with Asperger's at a disadvantage."
"38. … Secondly, we think that in the circumstances of this case it is inevitable and inescapable that the medical evidence should be inconclusive; and that it is not really possible to say with any degree of certainty why the Claimant (or indeed many other candidates) did not pass the test, beyond the simplistic response that she chose the wrong options. On balance and in the light of all the evidence we heard and read about the Claimant and others with ASC or Asperger's, and since no other reason has been identified for why she failed, we are persuaded that the reason that the Claimant did not pass the SJT is because of her Asperger's."
"22. As a matter of principle:
a. Where a test for competency is commensurate with that competency, it should generally be treated as justified, and as requiring no adjustment.
b. An employer should not have to adapt a test to the point where it no longer effectively tests whether someone would be able to do the job."
"15. … continuous link between the answers given and the standards of performance in role of the incumbent trainees who provided the answers, [such that it was] possible to say for certain with the multiple choice answer format, that an applicant has or has not demonstrated the competency being tested."
"… go beyond the method of assessment and that they lack the necessary analytical abilities, judgement, and the capacity to deal with ambiguity in practice …"
government
lawyer was "unique"; whilst it was clearly challenging, so is
legal work in other organisations, such as commercial ones.
"… not be ideal to have to run two such different methods of assessment alongside or in parallel, and that inevitably there would be difficulties in comparing candidates' responses/ answers, and potentially a degree of subjectivity and/or lack of objectivity would be present. …".
"… it is not asserted on the Respondent's behalf (and there was no evidence that) there was insufficient time from when the Claimant first raised [her] request for an alternative method of assessment on 26 June 2015 up to the date the competition closed (31 July) within which to make the requested changes; and even had that been the case, the Claimant had indicated that she was prepared to be considered for selection in June 2017."