Can multiple choice tests be discriminatory?

Employers must take care when formulating recruitment tests, as a recent EAT ruling on indirect disability discrimination shows. Gina Unterhalter reports

In The Government Legal Service v Brookes, Ms Brookes, a law graduate who has Asperger's syndrome, applied for a position with the Government Legal Service (GLS). Before being invited to interview, all applicants are required to pass a multiple choice situational judgement test. However, the multiple choice nature of the test put Ms Brookes at a disadvantage. She therefore asked if she could provide short narrative answers as an adjustment to the standard test, to take into account her disability. The GLS refused, stating that an alternative format was not available.

It did indicate that extra time might be given for later tests, provided three entry-level tests had been passed. Ms Brookes took the test and was told by the GLS that it would not be proceeding with her application, as she scored two marks below a pass.

Ms Brookes brought claims in the employment tribunal (ET) for indirect disability discrimination and failure to make reasonable adjustments. She claimed the format of the multiple choice test put her at a substantial disadvantage compared to other candidates who did not have Asperger's. She further claimed that there was no objective justification for requiring all candidates, regardless of their circumstances, to take the multiple choice test and that GLS had failed to make any reasonable adjustment to help her overcome the disadvantages caused by her Asperger's.

The ET agreed with Ms Brookes. It considered her request to submit written answers as reasonable and concluded that there was no justification defence to the indirect discrimination. By requiring all applicants to take the test in its current format, the GLS was pursuing a legitimate aim of testing decision-making competency, but the means of achieving that aim were not proportionate: it could have made a reasonable adjustment by allowing Ms Brookes to provide short written answers.

The GLS appealed to the Employment Appeal Tribunal (EAT), which dismissed the appeal. It could find no fault with the reasoning of the ET and considered that the multiple choice test was not the only way of assessing whether candidates had the requisite decision-making competencies. Therefore, the EAT found that there was no objective justification for the indirectly discriminatory treatment and that the GLS had also failed to make reasonable adjustments. The EAT ordered the GLS to pay compensation to Ms Brookes, issue her with a written apology and review its procedures in relation to people with disabilities applying for employment, with a view to greater flexibility in the psychometric testing regime.

The GLS did not want to change the testing method because of the application of subjective human judgement required to review written answers and the related costs. However, these reasons were not enough to abate the discriminatory treatment.

This case shows that businesses should take care when formulating recruitment tests and must carefully consider any requests from disabled persons for adjustments to any recruitment tests they use – a failure to deal reasonably with such requests could lead to a discrimination claim.

Employers should ask applicants whether they require any reasonable adjustments and, if so, enquire as to what is required. If an adjustment is requested by an applicant that doesn’t alter the effectiveness of the test and is practically doable, then the employer should consider making this adjustment.

Employers may, therefore, be expected to allow extra time or adjust their chosen method of testing in cases where a disabled applicant asserts that the method of testing puts them at a disadvantage. Employers are not expected to lower recruitment standards or make testing easier for disabled people. The key message is recruitment tests that are implemented to ensure consistency and eliminate human bias are not discrimination-proof, so employers should beware.

Gina Unterhalter is a senior associate in the employment team at Dentons