Asperger’s employment case highlights caution with multiple-choice testing

Recruiters have been warned to tread carefully if using multiple-choice testing when hiring, so as not to discriminate against candidates with autism.

The warning follows a recent tribunal ruling involving a woman with Asperger's syndrome, who was found to have been discriminated against during the recruitment process for the Government Legal Service (GLS).

The candidate – Terri Brookes, who represented herself – was asked to take a situational judgement test as part of the initial stage of her application. Brookes asked to be allowed to submit short written answers to the questions as she claimed the multiple-choice format of the test placed her at a disadvantage. While the GLS made time allowances for Brookes, she was not provided with an alternative test format, with the GLS arguing that the testing was a proportionate method for determining the best candidates for the position.

Brookes subsequently took the multiple-choice test in July 2015 but scored 12 out of a possible 22, two less than the passing mark of 14, and her application failed. Evidence provided to the tribunal showed that of the small number of applicants to have declared themselves as having Asperger's and taken the test, just one had passed.

An employment tribunal ruled last year ruled there was no other identifiable reason to explain why Brookes had failed the test, other than her disability, and by being asked to take the test as it stood, the GLS had indirectly discriminated against her.

The GLS subsequently appealed the ruling but the Employment Appeal Tribunal upheld the original ruling and refused permission to appeal the case any further.

Commenting on the case, employment law consultant Emma O'Leary, from business support firm ELAS Group, warned an array of candidates could be disadvantaged by multiple-choice tests, such as those with dyslexia, as well as those with Asperger’s.

“It highlights the importance of considering reasonable adjustments for disabled candidates, and if your recruitment process includes testing such as this, or any other method that could be considered a PCP [Provision, Criterion or Practice], it is imperative that you can demonstrate that the PCP is a proportionate means of achieving a legitimate aim if it's capable of putting a particular group at a disadvantage. This case would not have failed if the GLS had allowed the claimant to answer the questions in a different format than the multiple choice they insisted upon.”

Meanwhile, Dr Sybille Steiner, partner solicitor at law firm Irwin Mitchell, told Recruiter the case also highlights the risks for recruiters conducting such tests on behalf of clients.

“Recruiters need to ensure that in addition to simply allowing extra time, they should consider with the client whether they can make adjustments to the chosen method of testing in cases where a disabled applicant asserts that the method of testing puts them at a disadvantage.

“In the case the medical evidence was inconclusive yet the GLS were still held liable, so it is best to err on the side of caution.”

In terms of how to get hiring processes right, Sue Warman, HR director Northern Europe & Russia at SAS UK & Ireland, told Recruiter flexibility is key. The analytics firm launched a disability internship programme from SAS' UK headquarters in Marlow offering work experience to interns on the autism spectrum in 2015.

“It would be extremely unfortunate for both the employer and the candidate if great potential was missed because of an unwillingness to change process. Statistics, computing and problem solving are areas that autistic people can excel in, but their abilities are frequently overlooked because they fail to impress at interview.

“Mathematical competence, attention to detail, problem solving and the ability to look at challenges from different angles mean people on the spectrum fit perfectly for many emerging roles. The nature of modern work, especially in data science, means that teams of employees need a range of different and complementary skills to perform optimally. Not every team member needs to be a talented communicator who can directly manage clients, and there is a shameful waste of potential where this attitude exists. There is plenty of room for both the confident speaker and the tenacious problem-solver in today’s workplace.

“In our own disability internship programme, we worked very closely with the National Autistic Society to provide the training and minor adjustments to workplace practice needed to help our autistic employees integrate both in the long and short term. By having an understanding of the value and needs of autistic workers and by taking a few simple steps to accommodate them, both the organisation and the individual can gain from the opportunities presented to them.”

Explaining the difficulties people with autism can have when coming up against multiple choice testing, Mike Adams, founder at Purple, an organisation with a recruitment agency component helping disabled people into work, told Recruiter: “With autism, there are issues around understanding human contact, understanding interpretation whether that’s written, description or body language.

“So if you’re asking an individual to read something and interpret what is required, and that is your key competence, then I think people with autism – and I don’t want to make sweeping statements – might struggle.

“If you were to say, what we want you to do is tell us the answer to this very specific question and tell us what the patterns are and tell us what it means, then you’re into a different ball game. Very much it’s the case that people with autism are very good at the black and white and struggle with the grey – that’s how I would describe it.”

• What are your experiences with this issue? How do you ensure testing is non-discriminatory? Email us at [email protected] or tweet us below to tell us your thoughts. We will run comments online in a round-up at the end of the week.

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