The Government Legal Service v. Brookes, Court of Appeal - United Kingdom Employment Appeal Tribunal, March 28, 2017, [2017] UKEAT 0302_16_2803

Resolution Date:March 28, 2017
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:The Government Legal Service v. Brookes
 
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Appeal No. UKEAT/0302/16/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 28 March 2017

Before

THE HONOURABLE MR JUSTICE KERR

BARONESS DRAKE OF SHENE

MR P GAMMON MBE

THE GOVERNMENT LEGAL SERVICE APPELLANT

MS T BROOKES RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

|For the Appellant |MR NIAZI FETTO |

| |(of Counsel) |

| |Instructed by: |

| |Government Legal Department |

| |One 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

  1. This appeal proceeds by permission of Wilkie J. The case is about whether the Employment Tribunal was wrong in law to find that the Claimant, who has Asperger’s syndrome, was discriminated against by being required to sit a multiple choice Situational Judgment Test (SJT), as the first stage in a fiendishly competitive recruitment process for lawyers wishing to join the Respondent, the Government Legal Service.

  2. SJT, being a multiple choice test, is efficient in the sense that there are considered to be objectively right or wrong answers to each multiple choice question, which means marking can be done by a computer without human intervention or judgment. But the Claimant argued that because of her Asperger’s she was unlawfully disadvantaged by the multiple choice method of testing and that the Respondent should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers.

  3. The Respondent argued before the Employment Tribunal that it was justified in refusing the request. It argued that the case was not made out because the Claimant could not show that the testing method put those with Asperger’s or other forms of Autistic Spectrum Condition (ASC), nor the Claimant herself, at a particular disadvantage; and because even if it did, the requirement was objectively justified as a proportionate means of achieving the legitimate aim of recruiting the best candidates by testing their ability to make effective decisions.

  4. The claim was put as one of indirect discrimination (section 19 of the Equality Act 2010 (EqA)) and of discrimination by failure to make the reasonable adjustment (section 20) of permitting short written answers to questions instead of multiple choice questions; that much is agreed. At one stage there was a dispute about whether there was also a third claim, for discrimination under section 15 EqA because of something arising in consequence of the Claimant’s disability. The Respondent now accepts that the Employment Tribunal has made an unchallengeable finding that this claim was before the Employment Tribunal and was not abandoned.

  5. The appeal is against the findings of the Tribunal, presided over by Employment Judge Barrowclough sitting with Messrs Quinn and Rowe at the East London Hearing Centre in May 2016, followed by a Reserved Decision dated 27 June 2016 and sent to the parties the next day; and a refusal to reconsider that Decision, recorded in a letter dated 22 August 2016, on the ground that the request for reconsideration was an attempt to reargue the case on the evidence but “with different emphasis”.

  6. Broadly speaking, the Claimant submits that this appeal also is an attempt to do that. The Respondent, on the other hand - the Appellant in the appeal - criticises the findings of the Employment Tribunal as perverse, or unsupported by or contrary to the evidence, both expert and lay.

  7. The Employment Tribunal found 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. The Tribunal ordered the Respondent to pay compensation to the Claimant totalling £860 and made a recommendation, under section 124(2) EqA, that the Respondent issue a written apology to the Claimant and review its procedures in relation to people with a disability applying for employment, with a view to greater flexibility in the psychometric testing regime.

  8. The Claimant is a now 33 year old law graduate from Sussex University. She sat the law course from 2008 to 2012, taking a year out when she gave birth to her daughter. She was diagnosed with Asperger’s in 2009. When she sat her finals in 2012, adjustments were made. She achieved a Class 2:2 degree.

  9. The Respondent is a very large national legal organisation serving the legal needs of the government. In 2010, it introduced psychometric testing as part of its recruitment practices...

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