Online selection test discriminated against job seeker

Analysis

Online selection test discriminated against job seeker

An employer that used online psychometric tests to assess job applicants had discriminated against a woman with a disability, a UK tribunal has ruled.

An online psychometric test discriminated against a job applicant with Asperger’s syndrome, a UK Employment Appeal Tribunal (EAT) has ruled.

A woman with Asperger’s applied for a job as a trainee solicitor. The selection process included a “situational judgment test” conducted online, which required each applicant to answer multiple choice questions about how they would make decisions in job-related scenarios.

The woman asked if she could give short narrative answers to each question, but the employer said that no alternative format was available.

Applicants had to score at least 14 out of 22 on the test to progress to the next stage of the selection process. The woman scored 12 and was rejected.

Direct and indirect discrimination


The UK Employment Tribunal found that both direct and indirect discrimination on the ground of disability had occurred.

Although the test itself was a valid part of the selection process, because it aimed to measure a competency that was fundamental to performing the job, the woman was disadvantaged by the testing format because of her Asperger’s condition. A feasible alternative format (as suggested by the applicant) was available, but the employer did not adapt the test to allow it.

The employer had argued that changing the test format would be costly, cause logistical problems, be less effective at measuring decision-making ability and would make comparison of the woman’s result with those of other applicants very difficult.

The tribunal rejected those arguments and added that the selection process also contained other steps and screening procedures.

The employer appealed against this decision but the EAT rejected the appeal, finding that the employer had a duty to make reasonable adjustments to the test format to accommodate the applicant.

The woman was awarded financial compensation and the employer was ordered to issue an apology to her. It was also ordered to review its recruitment and selection procedures to make its psychometric testing methods more flexible and thus better accommodate disabled applicants.

Implications for Australian employers


It's very likely that a case under Australian anti-discrimination law with similar facts would result in the same outcome.

With the possible assistance of some “reasonable adjustments”, the woman had already been able to complete a law degree and, despite her disability, she only narrowly failed to pass the test. It is therefore arguable that, if provided with a more suitable format for the test, she had the ability to pass it and progress to the next stage of the selection process.

An employer would struggle to argue that it would be impracticable or cause unjustifiable hardship for it to provide the alternative test format requested by the applicant. The cost of doing so would not be onerous (and the employer in this case was a government agency), nor would the logistical arrangements be complex. Therefore, the exemption from Australian anti-discrimination law coverage would be very unlikely to apply here.

When assessing disabled applicants and employees, employers are often recommended to “ask the person” how he/she could do the job, as the best way to find a solution. In this case, the job applicant suggested an alternative method, which the EAT found to be feasible in the circumstances.

Note that the case involved both direct discrimination (the woman was treated less favourably because of her disability) and indirect discrimination (the employer set a job selection requirement that people with the applicant’s disability had greater difficulty complying with than applicants who were not disabled).

Finally, employers are reminded that discrimination in employment covers job applicants as well as current employees, and its scope includes any tests used in the selection or screening process.

The Government Legal Service v Brookes, UK Employment Appeal Tribunal, EAT/0302/16, 28 March 2017
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