As employers will be aware, the duty not to discriminate in an employment relationship starts long before any signatures appear on the dotted line. In fact, the duty begins from the moment an employer advertises a vacancy.
But how far should an employer go to meet this duty in today’s world of recruitment? As scores of talented applicants seek new roles, employers have to continuously seek new and intuitive ways to whittle down the fierce competition. Gone are the days where a simple one on one interview did the trick. Recruitment has become an Alan Sugar style minefield, with candidates finding themselves participating in group tasks, presentations, psychometric testing and commercial challenge… and that’s often just round one.
Clearly, the legitimate aim behind employers taking such measures is simple: to assess a candidate’s ability to meet the required competencies for a role. Legally however, how fair are the measures being taken to achieve this aim? What steps should an employer take to ensure that they are meeting their obligations under the Equality Act during a recruitment process?
The recent case of The Government Legal Service (GLS) v Brookes provides some guidance around this area. The case considered a recruitment process for trainee solicitors, whereby candidates were required to complete a multiple-choice ‘situational judgement test’, at the initial stage of recruitment. Ms Brookes has Asperger’s Syndrome. On account of this, Ms Brookes wrote to the GLS in advance of taking the test and requested permission to submit her responses by way of short-written narratives. The GLS refused to adjust the process as requested. Ms Brookes subsequently completed the test in the prescribed manner however was unsuccessful in reaching the next stage.
Ms Brookes bought employment claims against the GLS for disability discrimination. Earlier this month, the EAT upheld the tribunal’s decision that she had been indirectly discriminated against. It was decided that the requirement for all applicants to pass the situational judgement test by way of multiple choice questions had placed individuals with Asperger’s (who were said to often lack social imagination) at a disadvantage, when compared to those who did not have Asperger’s. GLS sought to justify this measure on the basis that the test was required to assess key competencies required for the job role. This defence was not however accepted. It was held that GLS’s means of achieving this aim was disproportionate as it would have been possible to assess Ms Brookes’ competencies by other means, for example a review of her written narratives. It was also found therefore that GLS had failed in its duty to make reasonable adjustments.
This case should serve as a clear reminder to employers that the discrimination protections apply to job applicants as well as employees. Whilst the need to assess candidates’ capabilities is a clear legitimate aim when recruiting for a role, this does not mean that employers will not have to justify their chosen method of achieving this aim (and any refusal to adjust this method). It is important that applicants are given an opportunity to request adjustments in advance of any particular stage of the recruitment process. To the extent an adjustment request is practical and will not wholly impact upon the employer’s ability to assess capability, employers should either consider implementing such adjustments or be prepared to clearly justify any refusal to do so.
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