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The Employment Appeals Tribunal has rejected an appeal by the Government Legal Service against a Tribunal judgement which found that its practice of requiring job applicants to complete a multiple choice assessment was discriminatory. An applicant with Asperger's Syndrome argued that allowing candidates with an Autistic Spectrum Condition to provide short written answers would be a reasonable adjustment, as the wrong or right nature of pre-scripted responses left her at a disadvantage. The GLS rejected this, arguing that even if it could be proven that the multiple choice questions left candidates with an Autistic Spectrum Condition at a disadvantage, the testing was a proportionate method of assessing applicants.
Both the original employment tribunal and the EAT found the GLS' position to be incorrect. Whilst they accepted that the testing served a legitimate purpose to make the recruitment process more efficient, the methods were ultimately disproportionate to the desired outcome. The courts found that GLS had indirectly discriminated against the applicant, had failed to make reasonable adjustments that took into account her disability, and had treated her unfavourably.
The judgement, which is one of the first at EAT to uphold a judgement of indirect disability discrimination, provides a warning to employers of the need to consider reasonable adjustments, as well as the restrictions of psychometric testing in relation to neurodiversity, particularly where that neurodiversity may be a Protected Characteristic.