Psychometric testing can provide useful information when assessing the suitability of potential employees. Linda Goldman and Joan Lewis examine when best to apply it and how it relates to disability discrimination in the workplace.
Distilling the essence of numerous advertisements for proponents of psychometric testing, it is clear that the aim is to corral potentially disastrous employment relationships. The good cowboys will come galloping to the rescue of the innocent employer, brandishing their test programmes at job applicants and those in line for promotion. But there is no consensus on a formal definition of psychometric testing. It is used for career planning and matching employees to jobs, identifying academic abilities and aims and aspirations covering work and life outside work.
Employers are anxious to get a good match of candidate and role, particularly during an economic recession and when an ageing workforce means that employment rates may be lower than in the past.
Many organisations, including schools and universities, utilise the services of career consultants. There are also internet questionnaires allowing individuals to evaluate the relationship between their own abilities, goals, interests and personal values and potential careers. Although psychometric questionnaires may be seen as tests, the designers emphasise that there is no right or wrong answer, whether the test is electronic or carried out by a trained administrator. The questionnaire is designed to encourage the user of the test to consider their options. The test can be repeated at different stages of a person’s education or career and may be of increasing use at times when other options have been considered and discarded.
Medical matters
As far as the law is concerned, because there is no right or wrong answer, there should be no question of discrimination through negligence or inappropriate subjectivity in the way the test is administered. However, where a test has been administered on behalf of a company and certain characteristics of a potential employee are overlooked or disregarded, there may be legal warning bells.
When it comes to mental health issues, it is arguable that psychometric testing could be seen as a way around the now defunct pre-employment health questionnaire, the use of which ended when the Equality Act 2010 came into force last October.
Although it is unlawful to carry out medical screening before confirming appointment to a job offer, psychometric testing can be applied at any stage of the recruitment process since it does not relate to health issues. At the pre-employment stage, what concerns employers is whether or not the candidate has the skill and aptitude to carry out the proposed work, whether or not there are adequate indications that conduct and social interactions will be appropriate in the workplace and whether or not any reasonable adjustments will be needed to ensure that all-important factor of regular attendance at work.
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Additional insight
It is often the case that physical disabilities do not necessarily interfere with the capacity to carry out work, although arrangements may be needed to cope with access or to complete tasks. Indeed, psychometric testing may reveal the need for physical adjustments that were not apparent in an ordinary interview process, such as time extensions for the completion of tasks. This would apply just as well to non-physical conditions such as dyslexia or attention and concentration disorders.
Some disorders that can cause difficulties in the workplace for the individual or for fellow employees may escape the scrutiny of the psychometric testing process, for example, Asperger’s syndrome. In August 2008, Gary McKinnon was diagnosed as suffering from an autistic spectrum disorder and depression. In November 2009, in the course of extradition proceedings aimed at sending him to the US to face trial for hacking into Pentagon and NASA computers to reveal military secrets, the depression was described as so serious that he was at risk of suicide if incarcerated.
From the UK perspective, McKinnon is a computer nerd obsessed with the possibilities of invasion from space. The US believes him to be a cyber-terrorist. There is little doubt that his IT skills would enable him to sail through an aptitude test relating to work with computers.
General topics that feature in many tests include numerical reasoning, working with graphs and tables, and diagrammatic reasoning. There are many more topics but it is easy to see how a person who is within the autistic spectrum and who might need to have additional social and psychological support in the workplace could slip through the testing net. This is because there are masking skills that can be acquired by high-functioning individuals who may not be diagnosed without a full psychiatric evaluation including investigation into communication issues.
Asperger’s syndrome is one of a spectrum of autistic disorders that can cause frustration for sufferers in the workplace. The problems of social interaction can increase aspects of eccentricity that may then interfere with the work standards of a person who can and should, if properly psychometrically tested, perform adequately at work. One of the usual support systems at work is through friends. A person with Asperger’s has difficulty making friends and understanding social cues, which brings us to disability discrimination.
Guidance laws
The Equality Act replaces the Disability Discrimination Act 1995 (DDA), although there are provisions to cover the period of the Act coming into force and pre-existing discrimination. Disability is one of the protected characteristics against which discrimination is prohibited. Section 6 of the Act explains the protection offered, broadly similar to that in the preceding legislation. Further details are set out in the Equality Act Disability Regulations, upholding much of what was required by the DDA. DDA guidance will remain until the new Act’s guidance has been finalised, which is expected to be later this year.
There is no doubt that there will be cases of autism that amount to having “a substantial adverse effect” on the person’s ability to carry out normal day-to-day activities. But it is important to note that the DDA list (effects on mobility, physical coordination and so forth) has been dropped.
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The Equality and Human Rights Commission Employment Code of Practice adopts the simple, but equally effective approach, explaining that normal day-to-day activities are those “carried out by most [people] on a fairly regular and frequent basis”. The examples in paragraphs 14 and 15 of the code include walking, driving and – which is of most significance in the case of autism/Asperger’s – forming social relationships. Following the case of Coleman v Attridge, in which Mrs Coleman was held to have suffered disability discrimination by reason of having to care for her disabled son, there is now a new category of discrimination in the Equality Act: discrimination by association. Thus, a carer of a person with a disability is also covered for disability discrimination.
In the absence of a pre-employment medical questionnaire and given that many sufferers of Asperger’s and other disorders are not diagnosed until later in life, if an employee has passed the interview and any psychometric test, an employer should monitor how well the employee with the condition gets on at work. Employers and managers should take particular care to deal with specific complaints and be aware if someone is behaving in a particular way because of an underlying disorder. The occupational health adviser should give access to psychiatric support, for example, to the Dore Programme, a neurolinguistic treatment increasing the ability to learn.
Setting the standard
Psychometric testing may indicate that there will be social or learning difficulties before employment starts, or tests may be used on OH advice to assess whether there is a problem during the course of employment. The employer needs to immediately introduce the reasonable adjustment process to avoid discrimination issues.
In a recent case before the Fair Employment Tribunal in Northern Ireland, the employer knew that the employee suffered from Asperger’s but failed to understand the implications and did not help him to function and work alongside his non-disabled colleagues. When he was required to use unfamiliar equipment, he was given no extra time to acquaint himself with the procedures required and the employer showed no understanding of his frustration and anger, which were part of the impairment of his social interactions. It was a characteristic of his condition that he needed to have virtually ritualised working patterns.
Although the employee communicated his need for more time until the new process became the norm, the employer ignored his requests and, ultimately, ignored his grievances and refused to uphold them. Managers did not train his colleagues in how to assist him. The disciplinary procedure sounded almost like a diagnostic procedure to identify his condition: failed to communicate; poor social interactions with his co-workers; taking too long to comply with tasks; and making a nuisance of himself by repeating requests for more time.
A little care, even empathy, might have diverted him from his successful tribunal case. Perhaps his employer has learnt some lessons in dealing with disability.
Linda Goldman, BDS, LLB, is a barrister at Henderson Chambers, Temple, London, EC4Y 9DB.
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Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect. Any enquiry about this article may be made to Joan Lewis. Tel: 020 8973 1953.
XpertHR provides a recruitment policy that outlines best practice on psychometric testing.
