Do Not Fall Foul of a Disability Discrimination During Recruitment

17th May 2017


As an employer, do not forget that the organisation could be subject to a discrimination claim even during the recruitment process. If an employer is made aware that an individual has a medical condition, it needs to understand that medical condition and research whether or not any reasonable adjustments can be made whereby that individual with a medical condition is not placed at a disadvantage.

As an employer, address whether certain medical conditions fall within the legal definition of a disability and therefore, imposes obligations upon the organisation. For example, there are conditions known as hidden disabilities such as, Dyslexia, Autism, Asperger or Dyspraxia.

The Government Legal Services found themselves in breach of the Equality Act in the case of the Government Legal Services (“GLS”) v Brookes namely, that they indirectly discriminated against Ms Brooks and failed to make reasonable adjustments.

Ms Brooks had Asperger syndrome. The first stage of the recruitment process was to sit a multiple choice test. Ms Brooks contacted the GLS ahead of the recruitment round and requested adjustments due to her Asperger’s to sit the online situational judgment test known as “SJT”. She asked that she be allowed to submit her answers to the questions in a short narrative form. She was told that this was not available but that there would be amongst other things time allowances.

She did not pass.

Ms Brookes brought claims for indirect disability discrimination, failure to make reasonable adjustments and also discrimination because of something arising in consequence of a disability.

The Tribunal found the following:

a) Upon hearing the medical evidence, the Tribunal concluded that the provision, criterion or practice (PCP) generally placed people who have Asperger’s Syndrome at a particular disadvantage compared to those who did not.
b) GLS advanced the argument that the multiple choice test was fundamental in deciding competency of the applicants which was a legitimate aim but the Tribunal found that this was not proportionate.
c) Because Ms Brooks sat the SJT in an unaltered form, this amounted to unfavourable treatment so the Tribunal also found that there was a failure to make reasonable adjustments.

As an employer, if you are presented with an applicant who has a medical condition during recruitment, you need to ask yourselves the following:


1. Is their condition considered a disability?
2. Would this medical condition put this particular candidate at a disadvantage to someone who did not have that condition?
3. Was the request that that candidate made reasonable and should be implemented? Also, would it remove the disadvantage.