Disability and the duty to make reasonable adjustments during recruitment
Under the Equality Act 2010, all employers have a statutory duty to safeguard against discrimination due to the protected characteristic of disability for both current employees and job applicants. A recent decision by the Employment Appeal Tribunal in AECOM Ltd v Mallon shows what can happen when an employer doesn’t get it quite right.
Background
The Claimant, Mr Mallon, applied for a position with AECOM which required applicants to complete a standardised online application form. Due to his disability of dyspraxia (also known as developmental co-ordination disorder), which affected his written communication skills, Mr Mallon was unable to create a personal profile and set up a username and password consisting of eight digits and including a special character. He emailed AECOM to explain his disability and request a telephone application process, but failed to explain what specific part of the online process he was unable to do. The HR Manager responded to Mr Mallon’s email, requesting that he explain his difficulties with the online process so that they could provide support, but did not offer a telephone application process as Mr Mallon had requested. Mr Mallon did not respond with an explanation and therefore was unsuccessful in obtaining the position.
The Employment Tribunal
Mr Mallon subsequently submitted a claim that the online application process was a provision, criterion or practice (PCP) that put him at a substantial disadvantage in comparison with persons who did not have a disability and that AECOM should have made reasonable adjustments under the Equality Act 2010 to avoid the disadvantage.
AECOM argued that Mr Mallon had not suffered substantial disadvantage as he was not a genuine applicant: Mr Mallon had previously worked for AECOM in 2017 but was dismissed during his probationary period due to unsatisfactory performance. The role Mr Mallon had applied to was in the same team he had previously been dismissed from, with the hiring manager also being his previous line manager. AECOM believed that he had completed online forms in the past and the Employment Tribunal itself noted that he had made approximately 60 Employment Tribunal applications using online forms. In fact, Mr Mallon had brought a disability discrimination claim following his earlier dismissal, which was settled without admission of liability.
The Employment Tribunal found that the blanket approach used by AECOM put Mr Mallon and any other applicants with dyspraxia at a significant disadvantage. As AECOM knew that Mr Mallon had dyspraxia, and as a result that he may have had difficulty in filling in the online form, they had a duty to make enquiries and should have asked him to provide more detail by telephone if they needed further clarification as to why completing an online application form was a particular difficulty for him.
Mr Mallon was awarded £2,000 for injury to feelings, together with interest of £700.
AECOM appealed this decision, arguing that the Employment Tribunal had erred on four grounds including, amongst other things, that AECOM did not have constructive knowledge of the disadvantage to Mr Mallon. Further, that Mr Mallon was not a genuine applicant for the advertised role and the Employment Tribunal’s decision was perverse in this regard.
The case then went to the Employment Appeal Tribunal (EAT).
The Employment Appeal Tribunal
The EAT agreed with the Employment Tribunal’s conclusion that if AECOM had acted reasonably, they would have telephoned Mr Mallon to understand what his difficulties were. Their failure to do so meant AECOM could not argue that it could not reasonably have known of Mr Mallon’s difficulties.
However, the EAT did uphold AECOM’s appeal against the finding by the Employment Tribunal that Mr Mallon was genuinely applying for a role. Whilst the Employment Tribunal had concluded that the job he was applying for was in both a different location and different team to his previous role, the evidence contradicted this. The EAT held that, had the Employment Tribunal understood that Mr Mallon was applying to return to a similar job in the same team with the same line manager, it may have decided differently. This was a material error and the high threshold for perversity was met. Therefore, this point was remitted back to the Employment Tribunal for them to consider their decision with the correct evidence.
What does AECOM Ltd v Mallon mean for employers?
This case demonstrates the obligation on employers to make reasonable adjustments for disabled applicants under the Equality Act 2010, even where minimal information has been provided about an individual’s disability.
In light of this case, employers should take great care when job applicants disclose a disability by ensuring that they make reasonable enquiries of the effects of such disability, so that any reasonable adjustments can be made. Such reasonable enquiries should include consideration as to whether any adjustments to the method of communication are required.
Finally, employers mustn’t forget about the Equality Act 2010 Employment Statutory Code of Practice (the Code). Paragraph 6.33 of the Code provides a non-exhaustive list of possible adjustments that might be taken by employers, whilst Paragraph 6.28 of the Code sets out some of the factors which might be taken into account when deciding what is a reasonable adjustment/step for an employer to take. For example, whether taking any particular steps would be effective in preventing the substantial disadvantage, the practicality of the step and the extent of the employer’s financial or other resources.
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