Embroiled in a very public David v Goliath battle

Discrimination against Asperger’s syndrome sufferers simply not lawful, explains Donna Reynolds

THE decision of the Employment Appeal Tribunal in Government Legal Service v Brookes is a reminder that job applicants are as protected against unlawful discrimination as employees.

Terri Brookes had informed GLS, her prospective employer, that she suffered from Asperger’s syndrome and requested that rather than taking the multichoice situational judgement test, she would provide short, narrative written answers? Clearly, the GLS was aware Ms Brookes, at the very least, believed she was at a disadvantage compared to those who did not have Asperger’s syndrome. So, why didn’t it know to make this reasonable adjustment and instead, find itself the subject of a very public David v Goliath battle? The duty to make reasonable adjustments is unique to disability, one of the nine protected characteristics covered by the Equality Act 2010. Where the duty arises, an employer (including prospective and ex-employers) must take positive and proactive steps to avoid the substantial disadvantage caused to a disabled person in relation to a relevant matter in comparison with non-disabled persons by the application of provision, criterion or practice (PCP), a physical feature or the non provision of an auxiliary aid.

Despite, or perhaps because of, its uniqueness, the concept of making reasonable adjustments is relatively well-known thanks, in part to the wealth of advice and guidance available. There is only an obligation to make reasonable adjustments if it is known, or could be reasonably expected to be known, that the person is disabled and likely to be placed at a substantial disadvantage by the PCP, physical feature or lack of auxiliary aid. The Equality Act 2010 defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. However, when the obligation does arrive, it is problematic in relation to disability discrimination, as GLS found. On one hand, “many adjustments are straightforward and easy to carry out, particularly if there’s been a little lateral thinking about how an accommodation can be reached” (according to Acas). Examples provided by the Equality and Human Rights Commission appear to support this and imply that perhaps they need not cost significant sums.

On the other hand, adjustments are only reasonable relative to the circumstances, taking into account factors such as cost and whether it would remove or reduce the substantial disadvantage to the disabled person. Given financial pressures and constraints faced by many businesses and the not uncommon situation of conflicting or unclear medical reports, it is not surprising it is an area ripe for litigation.

However, GLS didn’t argue it could not support the cost of adapting the psychometric test for Ms Brookes, nor argue the adjustment would not be effective in combating the disadvantage. The GLS argued the difficulties of those with Asperger’s or other autistic spectrum conditions “go beyond the method of assessment and that they lack the necessary analytical abilities, judgement, and the capacity to deal with ambiguity in practice”. This argument was rejected by the Tribunal because there was no expert evidence to support it.

Therein lies the rub. It cannot be said whether or not an adjustment is reasonable if you don’t get the information to make that decision.

The Employment Tribunals are clear; employers should be live to the existence of mental health conditions and inquiries should be made with the person and, if necessary, relevant medical professionals. Indeed, the view of the Tribunal in Brookes was “everyone is different and the same disability may affect people in different ways” and in the context of mental health conditions, the “little lateral thinking” recommended by Acas may be to speak to the person who might just be the most qualified person to consult with – the person concerned. Donna Reynolds is an Employment Partner with CCW Business Lawyers