Employers should give careful consideration to requests to adjust recruitment processes where a disabled applicant asserts that the particular method chosen puts them at a disadvantage. A lack of flexibility is likely only to be justified if the employer can show that the specific test correlates exactly with a core competency of the job, and that competency cannot be demonstrated in another way which does not put the applicant at a disadvantage. If the effect of the disability is not clear, employers will either need to seek detailed medical evidence or give the applicant the benefit of the doubt. Adjustments could be giving extra time, or allowing alternative means of demonstrating a capability.
In Government Legal Service v Brookes the employer required job applicants to sit a multiple choice test based on situational judgment. It refused to allow the claimant, who had Asperger syndrome, to provide short written answers instead. The tribunal accepted medical evidence that the claimant fitted the profile of a person with Asperger's who was likely to be disadvantaged due to a lack of social imagination and difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. The EAT held that the tribunal was entitled to accept that, despite inconclusive medical evidence on the issue, the claimant had been disadvantaged in this way and that this was, on the balance of probabilities, why she failed the test. Further, the EAT did not accept that a multiple choice test was the only way of testing the core competency of ability to make effective decisions in ambiguous situations and under pressure. The inconvenience caused to the employer of accommodating the request was outweighed by the disadvantage to the claimant. Her claims of indirect disability discrimination, discrimination because of something arising in consequence of disability, and failure to make reasonable adjustments were upheld.