REUTERS | Ina Fassbender

Artificial intelligence may not be so bright

In an era when emotional intelligence is recognised as valuable, and where employers are anxious to create effective processes for identifying the best recruits, it is ironic that so many rely on automation to exclude vast swathes of potential applicants. Cost is a key factor, as major employers try to limit the number of human interactions to manageable levels. But the effect of mass recruitment campaigns is that they may exclude the very candidates employers need because their testing platform either fails to identify the key skills required, or is too much of a blunt instrument.

Entire organisations may adopt a single approach (particularly for graduate recruitment). In practice organisations are likely to need a diverse set of skills for different roles. This arguably makes such an approach outmoded. It also runs the risk of being potentially discriminatory. Employers who rigidly rely on such standard tests may also be litigation targets for unsuccessful candidates.

In Government Legal Service v Brookes UKEAT/0302/16, an applicant with Asperger’s syndrome was able to demonstrate that she had been indirectly discriminated against when the GLS refused to adapt the test from a tick-box answer to the narrative response the applicant sought. Ms Brookes had made a request for the multiple choice test to be adapted, but the GLS was not willing to accommodate her. The GLS’s argument that it could not depart from the format of the test without compromising its assessment of the core competencies failed; it was unable to demonstrate that the test was inextricably linked to the core competencies being tested.

Recruiters need to consider whether each stage of the recruitment process inadvertently disadvantages a particular group. Disadvantaged groups will not be obliged to demonstrate why they failed to achieve success, provided they can show that there is a causal connection between the requirement to pass a test and the disadvantage they suffered (Essop and others v Home Office (UK Border Agency) [2017] UKSC 27).

Employers may need to test in order to identify whether a person has the skills to undertake the role. They must do this in a non-discriminatory way. They need to consider adapting tests where they place a person at a particular disadvantage. Having said that, they do not have to dilute the test so far that it ceases to assess the core competencies required. In Lowe v Cabinet Office ET/2203187/10, the employment tribunal recognised that those wishing to enter the Fast Stream of the Civil Service needed strong communication skills. An applicant with Asperger’s was not successful in her argument that the testing process, requiring role plays and interactive sessions, should be diluted to accommodate her disability.

The public sector will be increasingly vulnerable to inspection of its methods as more and more litigants use freedom of information requests and subject access requests under the Data Protection Act 1998 to find out details of the success or failure of those with their protected characteristics, in order to assist in any potential litigation. This situation is made more likely given the decision in Dawson-Damer v Taylor Wessing LLP [2017] EWCA Civ 74 that subject access requests are not invalid merely because they have a collateral purpose of assisting a data subject in prospective litigation.

The use of testing for solicitors is soon to be transformed. The Legal Practice Course will be replaced in 2020 by a US-style multiple choice exam called the Solicitors Qualifying Exam. There are concerns that this change will dilute the quality of the profession, given its heavy reliance on tick-box multiple choice questions. The nature of such an exam will not require the same level of writing skills or the ability to demonstrate sustained development of a coherent argument. This new method of testing will present challenges and the SRA should be polishing up its arguments in response. It should also ensure that it is ready to defend its use from those who regard it as detrimental to the public.

Virtual Law Jane Moorman

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