Government discriminated against job applicant with Asperger's

The Government Legal Service (GLS) discriminated against a woman with Asperger’s syndrome, who had applied to join it, the Employment Appeal Tribunal has found.

The EAT said in The Government Legal Service v. Brookes [2017] UKEAT 0302_16_2803 that the GLS was attempting to reargue the factual case…”under the guise of an appeal on a point of law. The appeal raises no point of law and is dismissed”.

Kerr J said there had been no error of law when an employment tribunal decided that applicant Terri Brooks was discriminated against by being required to sit a multiple choice ‘situational judgment test’ (SJT) as the first stage in competitive recruitment for lawyers hoping to join the GLS. The service appealed against that ruling.

He said the tribunal's decisions that the GLS indirectly discriminated against Mr Brooks, 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 appeal argued that the finding that the requirement to take and pass the online SJT placed Ms Brooks at a particular disadvantage compared to those who did not have her disability was unavailable to the tribunal on the evidence and perverse.

But the EAT said the original tribunal had considered “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, 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 GLS had also argued that original decision should not have been reached as medical evidence was inconclusive.

The EAT though said: “The reference to ‘inconclusive’ medical evidence meant only that the medical evidence was nuanced and not all one way.

“It did not mean that the tribunal was disabled from evaluating it in the light of other evidence, including that already assessed, and reaching a conclusion on the basis of that other evidence taken together with the medical evidence.”

Mark Smulian