Many large organisations use online tests to recruit staff and assess the suitability of existing employees for promotion. However, an Employment Appeal Tribunal (EAT) decision has underlined that great care is needed to ensure that such tests do not fall foul of disability discrimination laws (Muzi-Mabaso v Commissioners for Her Majesty's Revenue and Customs).

Mr Muzi-Mabaso began working for HM Revenue and Customs (HMRC) in September 2004. He suffered from depression and was a disabled person for the purposes of the Equality Act 2010.  

In 2010, he was temporarily promoted during a two-year period whilst he underwent a training course in Bristol that was part of HMRC's 'Business Driven Development Programme'. However, he was unable to pass the second module of the course and subsequently reverted to his former grade band, after which he was absent on sick leave for six months suffering from stress and depression.

When Mr Muzi-Mabaso returned to work, he sought promotion, but was not prepared to take the requisite online test on account of his depression and because he had a phobia of the application process. He was offered extra time to complete the test in a private room, with a colleague to talk him through the questions, but persisted in declining to take it. He said that the test was not essential, that he should be excused from taking it on grounds of his disability and that he should be slotted into an available position.

The Employment Tribunal (ET) rejected his disability discrimination claims. Amongst other things, it found that HMRC's use of online testing was a fair and objective method of filtering through almost 5,000 candidates to ensure that they met basic competency requirements.

In ruling on Mr Muzi-Mabaso's appeal against that decision, the EAT found that the ET had failed to give adequate reasons for rejecting his claims that he had been placed at a substantial disadvantage and that there had been a failure to make reasonable adjustments to cater for his disability.

The ET's reasoning did not make it clear that it had carried out the necessary balancing exercise with regard to the discriminatory impact of HMRC's requirement that he complete the online test and it had failed to carry out 'the level of scrutiny required in respect of the potential reasonable adjustments in the claimant's individual case'.

The parties were granted permission to make further written representations in the light of the EAT's judgment.

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