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How to avoid discrimination claims when recruiting staff


New rulings mean small firms relying on tests to assess potential new recruits need to be able to justify their use if they are to avoid discrimination claims, says Raphael Prais

Do you include a test with your recruitment and promotion procedures?

If so, you may be interested in two judgments (April and May 2017) from the Supreme Court and the Employment Appeal Tribunal (EAT). In brief:

1 Essop v Home Office (Supreme Court). If statistics show that people with a particular protected characteristic perform badly in a specific test, the employee does not have to show why the test has that effect in order to show indirect discrimination. That said, the employer may be able to justify its use of the test if it is a proportionate way of achieving a legitimate aim.

2 The Government Legal Service v Brookes (EAT). The claimant had Asperger’s syndrome, which affected her ability to pass the situational judgment test. The tribunal accepted the claimant’s evidence on the effect of the disability, and found that it was disproportionate, therefore unjustified, and therefore unlawful. 

Lies, damn lies and statistics

I’ll start by summarising the structure of an indirect discrimination claim:

The employer has a ‘provision, criterion or practice’ (PCP) that applies to all employees. PCP is quite a broad term and refers to most ways of doing things practised by the business.

The claimant has a ‘protected characteristic’, and the PCP puts employees with that characteristic at a disadvantage compared with others. Eight protected characteristics are named in the Equality Act 2010: for example, ethnicity and disability.

The employee in question is disadvantaged in that way. 

The employer is unable to justify the PCP as being a ‘proportionate means of achieving a legitimate aim’. 

Essop focused on the second and third requirements above. In particular, the question was whether:

A. If statistics show that employees with the claimant’s characteristic are less successful at the test, have those requirements been made out? 

B. Or, having relied on statistics in that manner, does the employee still have to show why the PCP has that effect on this employee?

Ours not to reason why

You might ask, how can the third criterion possibly be satisfied if they only rely on statistics?

The judgment replies: “This will largely depend upon how one defines the particular disadvantage in question. If the disadvantage is that more BME or older candidates fail the test than do white or younger candidates, then failure is the disadvantage and a claimant who fails has suffered that disadvantage.”

One might counter that the employee who fails the test isn’t disadvantaged because so many other people in the group fail, but because he or she has failed the test. However, the further point made by the Supreme Court is that we might not know why a particular group does worse in these tests. Indirect discrimination deals with hidden barriers that are not easy to spot.   

A claim could still be defeated in two ways:

1 Employers might still rebut the statistical conclusion. If a candidate didn’t show up for the test, the employer would succeed in arguing that the absence was the actual reason for the failure. 

2 If the employer assessed the need for the test rigorously and impartially and it assesses essential skills or knowledge, the employer may succeed in justifying the PCP. 

Tests and disabled employees

The Government Legal Service v Brookes concerned an employee with Asperger’s who failed the GLS’s situational judgment test. 

To justify the test, the employer had to show that it served a legitimate aim and was a proportionate way of achieving it.

The employment tribunal accepted that the employer had a legitimate aim – to assess applicants’ competency. However, it concluded that the test was not a proportionate way of achieving it. The Employment Appeal Tribunal did not disagree. 

To test or not to test

To conclude, if you have good reasons for using tests in your recruitment and promotion procedures, then you don’t need to stop using them. 

However, you should think about the tests used, be able to justify them and be prepared to make adjustments for disabled employees.