A recent Employment Appeal Tribunal case addressed an employer’s obligations to make reasonable adjustments to their job application process for an applicant with dyspraxia.
Under the Equality Act, employers are obliged to make reasonable adjustments for disabled job applicants, where they know or reasonably ought to know that the applicant is disabled and is likely to be put at a substantial disadvantage due to their disability. Where a provision, criterion or practice (PCP) is applied by the employer, and this puts the disabled applicant at a substantial disadvantage when compared to a person who is not disabled, the employer must take reasonable steps to avoid that disadvantage.
In AECOM Ltd v Mallon, Mr Mallon was employed by AECOM Ltd between 10 April 2017 and 18 December 2017 at its Birmingham office, until his employment was terminated for performance reasons. Mr Mallon has dyspraxia – a condition which affects movement and coordination, and can negatively impact, among other things, the ability to write and type. Subsequent to the termination of his employment, Mr Mallon brought a disability discrimination claim. This was settled without any admission of liability by AECOM, and assurances were given to Mr Mallon that this would not restrict him from applying for future roles with the company.
In August 2018, Mr Mallon sought to apply for a role at AECOM’s London office. To apply, applicants needed to complete a short online application form, involving creating a personal profile with a username and a password with a special character – this caused Mr Mallon some difficulty due to his dyspraxia. Mr Mallon emailed AECOM’s HR department and requested that he be allowed to make his application orally because of his disability. He attached his CV to this email, which included information about dyspraxia and how it affects people.AECOM’s senior HR manager responded to Mr Mallon by email to confirm that he needed to complete the online form, but to let her know if he was struggling with any particular aspect of the application. Mr Mallon replied by email but did not explain that he could not create a username and password, and instead continued to just say that he was happy to complete the online form orally over the phone. Neither party called the other. Unable to continue with his application, Mr Mallon brought a disability discrimination claim to the Employment Tribunal, on the grounds that AECOM had failed to make reasonable adjustments.
The Tribunal found that AECOM had applied a PCP in two parts. First, applicants were expected to create an account to access the application form, by providing a username and password. Second, applicants were expected to answer questions on the form by inserting information in the spaces provided. This two-part PCP put Mr Mallon at a substantial disadvantage because of his dyspraxia, which made it particularly difficult for him to express his thoughts in writing.
The Tribunal took the view that AECOM knew that Mr Mallon had trouble filling out the online form because of his dyspraxia. Although Mr Mallon had not identified the specific difficulty he was having, it should have been apparent to AECOM that Mr Mallon’s dyspraxia would create problems for him in this regard. If the HR manager had wanted further clarity of the reasons Mr Mallon was unable to complete the form, she should have called him – due to Mr Mallon’s difficulties with written communication, it was unreasonable to expect him to explain himself over email. AECOM had failed to make reasonable adjustments, and Mr Mallon’s claim therefore succeeded. AECOM appealed to the Employment Appeal Tribunal (EAT).
AECOM argued that the Tribunal had assessed AECOM’s knowledge of Mr Mallon’s disability and substantial disadvantage incorrectly. The question that they should have asked was whether AECOM ought to have known of the particular substantial disadvantage that Mr Mallon was put to by the PCP, rather than whether he was in some way disadvantaged by the PCP. The EAT held that while the Tribunal had taken an unusual approach in the judgment, it had ultimately decided that AECOM had constructive knowledge of the substantial disadvantage that Mr Mallon was put to by the PCP. The fact that Mr Mallon was having difficulties with the form should have been apparent to AECOM, even if Mr Mallon did not explain his reasons for this. There was no good reason why someone from AECOM could not have called Mr Mallon to learn why he was struggling with the form, and this essentially put AECOM on notice of the particular disadvantage that Mr Mallon was being put to.
AECOM also argued that the Tribunal had applied the wrong test when asking whether it was possible for AECOM to have sought clarification from Mr Mallon via phone call, and that the Tribunal should have instead asked whether doing so would have been reasonable in the circumstances. Had the Tribunal instead applied this test, AECOM argued, it would have concluded that such further enquiries were not reasonable because they would not have yielded answers, in part due to Mr Mallon’s unwillingness to cooperate. The EAT held that, while the Tribunal had not expressly stated that employers are only required to make “reasonable” enquiries, it was plain from the decision that the Tribunal was addressing the question of reasonableness. The Tribunal’s finding was that, had someone called Mr Mallon, he would have provided specific details – it therefore followed that it would have been reasonable for AECOM to have called him.
Finally, AECOM disputed the Tribunal’s finding that it had been unreasonable of AECOM to expect Mr Mallon to explain his difficulties over email. AECOM referred to Mr Mallon’s suggestion that an oral application could be arranged via email, and the fact that he had engaged in protracted email correspondence. However, AECOM had repeatedly asked Mr Mallon to explain his difficulties over email, and he had failed to do so. There were only two explanations for such failure – either Mr Mallon was being deliberately obtuse because he was not a genuine applicant, or he was facing issues with written communication. Having established that Mr Mallon was a genuine applicant, the only explanation for his failure to explain was that he had difficulties with written communication. The EAT concluded that it would have been apparent to a reasonable employer that an applicant with dyspraxia who was struggling to explain themselves over email would be best contacted via phone – and this was a point that AECOM’s HR manager had conceded at the Tribunal hearing.
The EAT therefore dismissed all of the appeal grounds – save that they remitted the question of whether Mr Mallon was a genuine applicant for the same Tribunal to reconsider.
This case demonstrates how important it is to have procedures in place for dealing with disability-related issues that might arise during the recruitment process. It might not always be appropriate to require candidates to complete applications in a certain format, and if an applicant is encountering difficulties, then it may be wise to give them a call and get a better understanding of their needs.
If you would like help with ensuring that your recruitment processes are non-discriminatory, or want advice regarding the needs of disabled job applicants, please get in touch at [email protected]
