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June 2, 2017

Multiple choice test can amount to discrimination

In the recent case of The Government Legal Service (“GLS”) v Brookes (“B”), B applied for a legal training contract at GLS.  B has Asperger’s Syndrome and informed GLS that she would require reasonable adjustments, namely a short form answer format, to enable her to properly carry out a multiple choice test which formed part of the recruitment process.  GLS refused B’s request and B expressed her concerns about the potentially discriminatory impact of the test.  B took the test and scored 12 out of 22 with the pass mark being 14.  B did not progress any further in the recruitment process.

B subsequently brought claims of indirect discrimination and a failure to make reasonable adjustments against GLS and succeeded with both claims. The Employment Tribunal (and subsequently the Employment Appeals Tribunal) found that B had been subject to a ‘provision, criterion or practice’ (“PCP”) that had put a group of people such as B at a particular disadvantage when compared with those who did not have Asperger’s Syndrome.  In particular, B was put at a substantial disadvantage.  

The Employment Tribunal recommended that GLS should review its psychometric testing procedures for candidates and particularly in relation to job applicants with a disability.

Key consideration at recruitment

In line with best practice, employers should review their recruitment procedures to ensure that they are not discriminatory. In particular:

  • Identify PCPs that are in place.
  • Have you been made aware of any sort of disability from the outset?
  • May any PCPs put a person with a specific disability at a disadvantage from the outset?
  • Can this PCP be justified?
    • Was there a legitimate aim?
    • If so, was it proportionate?
  • Remember there is a duty to make a reasonable adjustment to help job applicants with a disability. Consider possible reasonable adjustments that could be made.
  • Recommendations may be given to review PCPs when recruiting candidates with a disability, with a view to providing greater flexibility.


The employment team at Greenaway Scott are more than happy to assist with any clarification or further information regarding recruitment. Please contact us at employment@greenawayscott.com

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