What constitutes a reasonable adjustment in respect of a disabled job applicant?

What constitutes a reasonable adjustment in respect of a disabled job applicant ?

In the recent case of The Government Legal Services v Brookes UKEAT/0303/16/RN (the Brookes case) the Employment Tribunal held that the claimant had been discriminated against by being required to sit a multiple choice “Situational Judgment Test” as part of the recruitment process for applicants for the Government Legal Services.

The provisions of the Equality Act 2010 apply to both employees and job applicants, under section 39 an employer A must not discriminate against a person B – a) in the arrangements A makes for deciding to whom to offer employment; or b) by not offering B employment.

Brookes – the facts

In the Brookes case the claimant, who had Asperger’s syndrome, applied for a job with the Respondent. The first stage of the recruitment process was a multiple choice Situational Judgment Test (SJT). The claimant argued that she was unlawfully disadvantaged by the multiple choice format and requested that she be allowed to answer the questions in the SJT in the form of short narrative written answers. She was informed that an alternative test format was not available. The claimant took part in the SJT which did not have a time limit and submitted it on-line. She was informed she had not passed, she scored 12 out of 22 when the pass mark was 14.

In this case the claimant brought a claim under section 19 Equality Act – indirect discrimination, section 20 failure to make reasonable adjustments and section 15 discrimination from something arising in consequence of a disability.

The ET decision

In the Employment Tribunal (ET) the respondent argued that the claimant could not show that the testing method put those with Asperger’s or others forms of Autistic Spectrum Condition at a particular disadvantage, alternatively they argued that the requirement was objectively justified as a proportionate means of achieving a legitimate aim of recruiting the best candidates by testing their ability to make effective decisions.

The ET accepted that the PCP, namely the requirement for all applicants to sit and pass the online SJT, put people such as the claimant as a group at a disadvantage compared to those applicants who did not have Asperger’s. The tribunal accepted the expert evidence that the PCP did in fact put the Claimant at a particular disadvantage. There was evidence that for a course the claimant had undertaken at London Metropolitan University they had accepted the proposition that, where appropriate, multiple choice questions should be replaced with questions requiring a short written answer.

The Tribunal went on to consider the defence of justification. It accepted that there was a legitimate aim, the SJT was there to test the fundamental competency of the applicants but concluded that the means of achieving this were not proportionate. The claim under section 20 succeeded on similar grounds. The section 15 claim also succeeded.

The EAT decision

The Employment Appeal Tribunal (EAT) considered that the ET had correctly directed itself on the law and was entitled to come to the conclusion it had regarding PCP and the fact that it put the claimant at a particular disadvantage.

The EAT went on to consider the appeal against the finding on justification. It was argued that where a test for competency such as the SJT is commensurate with that competency no adjustment would be required, an employer should not have to adapt a test so that it no longer effectively tests whether someone was able to do the job.

The ET had accepted the claimant’s argument that it was not necessary to scrap or fundamentally change the SJT but just permit a small number of persons to perform the SJT in a different format. The tribunal rejected the respondent’s submission that people suffering from Asperger’s lack the necessary analytical abilities to deal with ambiguities in practice, there was no direct evidence to support this submission.

The EAT accepted that the tribunal had carried out the correct balancing exercise setting out the factors on the respondent’s side and those on the claimant’s side but concluding that the factors on the claimant’s side outweighed those on the respondent’s side.

Previous Cases

The Brookes case follows previous decisions where tribunals have considered what adjustments were reasonable when an employer was testing a disabled job applicant. The key factor appears to be whether the changes to the format of the test does or does not undermine the essential purpose of the test to challenge the competency of the applicant to be able to carry out the job applied for.

Lowe v Cabinet Office

In the case of Lowe v Cabinet Office an ET decision, the claimant, who had Asperger’s, applied for the civil service graduate entry scheme, which involved a rigorous appraisal process. A number of adjustments were agreed including extra time during the assessment day, that the assessors should be aware of her condition and that she be given a few extra seconds to answer questions in two specific exercises including the group discussion. The claimant also asked that in the group exercise the candidates be asked questions in turn in a specific order, this was rejected on the basis that it would make it impossible to test the candidates against the competencies required.

The claimant brought a claim for disability discrimination and argued that there were further adjustments the respondent could have made, such as allowing her not to partake in the group exercise, using a facilitator in the group exercise, not taking into account negative behaviour arising from her disability, adjusting the scores so that communication skills were given less weight.

The respondent’s case was that they accepted the need to make adjustments to the selection procedures but could not accept any dilution of the competencies. The evidence given was that the jobs were pressurised and that the competencies were in practice required on a daily basis. The tribunal accepted that the PCP of requiring candidates to participate in the group exercise placed the claimant at a substantial disadvantage. The cabinet office said that the process was deliberately challenging in order to find high quality candidates and removing the disadvantage that the claimant suffered would undermine the purpose of the exercise. It was held that the adjustments claimed were not reasonable.

Again the key factor in this decision appears to have been that the respondent had been prepared to make some adjustments to the format of the appraisal process but the tribunal accepted that proposed adjustments which undermined the purpose of the appraisal to test the essential competence of the candidates did not constitute a reasonable adjustment.

Hart v Chief Constable

In the case of Hart v Chief Constable UKEAT/0403/07.ZT the claimant was a probationary police constable. She was injured in two road traffic accidents and suffered a serious spinal injury, as a consequence she was unable to carry out certain core tasks and activities set out in the Professional Development Portfolio which laid down the standards which had to be attained before the probation could be successfully completed. The claimant could not carry out certain tasks where there was a real risk of confrontation. The claimant was offered a staff post, which she rejected and was dismissed.

The claimant contended that the respondent ought to have made reasonable adjustments so as to enable her to be confirmed in her employment even though she could not meet the required standards, although she accepted that the would not be able to perform those duties of a police constable which would have exposed her to routine confrontational situations requiring restraint and arrest.

The claimant argued that there was no reason why every officer should be fully equipped to carry out all the duties of a constable’s office, there were a number of officers who suffer a disability once they have qualified and in those circumstances the officer might be placed on restricted duties, which in effect might be to relieve them from the obligation to be involved in any confrontational situations.

The employment tribunal accepted the respondent’s argument based on the strict requirements of the Professional Development Portfolio and their refusal to waive these requirements in so far as they relate to competencies requiring confrontational experience. They said that those requirement necessitating training and experience in confrontation situations was an irreducible minimum in the training of a police constable. They also accepted that there were significant differences in the position of a serving officer and a probationer.

The EAT said that the issue was whether it was reasonable to expect the respondent to modify the requirement of the Portfolio, this was a fundamental adjustment relieving the officer from the obligation to achieve competence with respect to a core part of the duties. The Tribunal was entitled to find that it could never be reasonable to expect the respondent to make an adjustment which would dilute the standard of competence in a major way.

Wade v Hallam University

The position was similar in the case of Wade v Sheffield Hallam University UKEAT/0194/12/LA, although in this case the claimant was an existing employee applying for a vacant position. The claimant was disabled, she suffered from an allergic condition. She was off work from 2004 and placed on gardening leave in 2005. In 2006 the respondent carried out a re-structuring exercise. The claimant applied for a vacancy but failed to meet two essential criteria, she lacked the ability to lead teams and to work within the newly restructured faculty of organisation and management. She was not offered the job. The same position became available in 2008 she applied again for the job. The claimant attended an interview but was not offered the job.

The claimant brought a claim for disability discrimination the PCP being the requirement for the claimant to attend a competitive interview. The Tribunal considered that the claimant was put at a substantial disadvantage by having to go through the interview process but did not accept that an easier assessment process amounted to a reasonable adjustment as this would have been tantamount to requiring the employer to automatically appoint the claimant when it did not believe that she was appointable.

The EAT did not allow the claimant’s appeal. There had been an adjustment made to the physical environment at the second interview with a change of venue but what was required by the claimant was that the essential ingredients of the job be disapplied.

Competence Standards

In the case of Hart v Chief Constable the EAT said that Section 14B of the Disability Discrimination Act 1996 provided an analogous situation, this related to the duty to make adjustments of qualification bodies and provides that this duty does not apply to competence standards. Bodies establishing qualifications were under no obligations to make an adjustment which would lower standards but merely to take reasonable steps to adopt procedures which would not substantially disadvantage a disabled person in reaching those standards.

This section of the DDA was considered by the EAT in the case of Burke v College of Law UKEAT/0301/10/SM The claimant, who suffered from M.S. requested that certain adjustments be made relating to his taking the Legal Practice Course examinations. Some adjustments were made, including giving the claimant extra time, rest periods and accommodation near the exam venue. The claimant asked to be allowed to take the examination at home and to spend several days working on the exam but the Law Society said that it would be impractical for the claimant to be invigilated at home.

The claimant brought a claim for disability discrimination under s14b of the DDA with three PCP’s, namely the requirement to take the exam at a particular venue, the requirement for the exam to be supervised and the timing requirement. The ET considered that the timing requirement was a competence standard, the purpose being to determine the competence or ability of the candidates to work under time pressure within a limited period. No duty arose under the act to make adjustments and the respondent had made reasonable adjustments to meet the claimants needs.

Schedule 14 of the Equality Act

The provision in section 14B of the DDA has been incorporated into the Equality Act 2010 at Section 4 Schedule 13 which relates to education and reasonable adjustments, it states that –

A provision, criterion or practice does not include the application of a competence standard.

A competence standard is an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability.

Conclusion

Where an employer is faced with a request by a disabled job applicant for certain adjustments to the examination or interview process it is important that due consideration be given to these requests. It would appear from the case law that adjustments with regards to time allowed to complete a task or relocating the venue or even changing the format, as in Brookes, will normally be considered by a tribunal to constitute reasonable adjustments. Where an employer refuses a request for such adjustments on the basis that this would undermine an essential element of the test or appraisal they would need to have good evidence that this was the case. One the other hand where the adjustment requested can be shown by the employer to undermine the competency that is being tested the case law suggests that Tribunals will be sympathetic to employers refusing such requests.

DAVID CURWEN
5th June 2017