Kerry Underwood


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I am grateful to Terri Brookes for supplying me with information about this case.

In Government Legal Service v Brookes – UKEAT/0302/16/RN

the Employment Appeal Tribunal upheld the decision of an Employment Tribunal that the Government Legal Service (GLS) had discriminated against the applicant, who had Asperger’s Syndrome, in requiring her to sit a multiple choice test at the first stage of its recruitment process.

The EAT also upheld the finding that, by refusing her request to provide answers to the test in narrative form, rather than in a multiple choice format, the GLS had failed to make reasonable adjustments.

The GLS recruits around 35 trainee solicitors each year and receives several thousand applications.

All applicants are required to sit a multiple choice test online.

Ms Brookes contacted the GLS ahead of the recruitment process and requested adjustments to allow her to submit her answers in a short narrative form.

The GLS refused.

Ms Brookes took the test and received 12 marks out of 22 thus her application did not proceed as the pass mark was 14.

The Employment Tribunal found that the GLS had applied a provision, criterion or practice of requiring all applicants to take this online multiple choice test.

Having heard expert medical evidence the Employment Tribunal concluded that this placed people with Asperger’s Syndrome at a particular disadvantage compared with those who did not have it and that this caused Ms Brookes’ disadvantage.

The GLS argued that, even if Ms Brookes had successfully shown that that was the case, the testing was a proportionate method of filtering candidates.

The Employment Tribunal disagreed and said there was a less discriminatory alternative, as proposed by Ms Brookes.

The Employment Appeal Tribunal upheld that claim:

“The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT (Situational Judgment Test, but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT”

The Employment Appeal Tribunal held that the decision making powers of the small number of candidates with Asperger’s could properly have been measured by allowing answers in a narrative format.

The decision does not mean that employers need to water down the standards for a role, but must consider, where appropriate, adjusting the means of testing whether an individual meets the standards for the job.

Multiple choice tests are considered to be efficient in that there are considered to be objectively right or wrong answers to each question, meaning that marking can be done by a computer without human intervention or judgment.

The Employment Appeal Tribunal refused the Government Legal Service permission to appeal.


Written by kerryunderwood

June 1, 2017 at 9:29 am

Posted in Uncategorized

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