If you do, two recent judgments, one from the Supreme Court and one at the Employment Appeal Tribunal (EAT) have provided reasons to be careful.
At the Supreme Court, it was held in Essop v Home Office that if statistics show that a particular ethnic group do worse on average at a particular test, then that amounts to indirect discrimination – it is a ‘provision, policy or practice’ (PCP) that adversely affects those with a particular protected characteristic. The reason for that result does not necessarily have to be addressed.
As explained in the judgment, we often don’t know the reason for different results. Similarly, when considering indirect discrimination against mothers with childcare responsibilities, the court doesn’t look into why mothers in our society bear the brunt of these responsibilities.
That said, if there was a clear reason unrelated to ethnicity that explains the poor result, that would defea the claim. For example, if an applicant failed to show for the exam, he/she could not claim indirect discrimination. In addition, it would be open for the employer to try to ‘justify’ the PCP has having a legitimate purpose and being proportionate – but that issue is now returning to the employment tribunal (so watch this space).
This issue may also be relevant if an applicant has a disability. Often, of course, a disability will have no noticeable effect on success in a test. But sometimes it will. In The Government Legal Services v Brookes, the job applicant had Asperger’s syndrome, and the tribunal agreed that it did affect her ability to do the test. Furthermore, though measuring people’s ability was a legitimate aim, in practice the use of the test was not proportionate. Accordingly, it was not justified and was therefore unlawful discrimination.
Tests are a fact of life in our society. Whether we like it or not, sometimes it’s necessary to assess people’s ability. These rulings don’t mean you can’t use tests at all. However, they do mean you should think carefully about what the relevance of the particular test, and whether you could assess that attribute in a different way. If you don’t take those precautions, you might find yourself on the wrong side of the law.
If you require further advice on these issues, you may wish to join our community; on elXtr we have guides and documents to help you navigate employment issues.
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