In AECOM Limited v Mallon, the Employment Appeal Tribunal (EAT) held that an employer failed to make reasonable enquiries into the effects of a job applicant’s dyspraxia.
When the job applicant, who was struggling to submit an online form, failed to respond to their emails requesting more information about his difficulties with online submission, the employer should have corresponded with him by telephone. As a result, the disabled job applicant succeeded in his claim that requiring applications via an online application put him at a substantial disadvantage and triggered the employer’s duty to make reasonable adjustments.
The Need for Reasonable Adjustments for Dyspraxia
Mr Mallon, who suffers from dyspraxia and is disabled for the purposes of the Equality Act 2010, applied for a consultancy role with AECOM Limited. As part of their recruitment process, AECOM required candidates to create a login to complete a short online application form. This involved entering a username and password.
Mr Mallon emailed AECOM, explaining he would like to apply for the role. He attached his CV and also some general information about dyspraxia. He also requested to make an oral application instead of completing the form on account of his disability.
AECOM repeatedly contacted him by email and requested him to explain his difficulties with the online process but he failed to respond. When Mr Mallon was unsuccessful in his job application, he brought a claim against AECOM for failing to make reasonable adjustments for his disability.
The employer argued that its duty to make reasonable adjustments was not triggered because Mr Mallon had failed to describe his specific difficulties, despite their repeated emails to try and find this out.
An employment tribunal upheld Mr Mallon’s claim on the basis that AECOM had constructive knowledge of his disability and they knew he had difficulty completing the online application. Given his disability, it was unreasonable to expect Mr Mallon to provide a full account of his difficulties in written communication. Instead, the tribunal held that AECOM should have telephoned him after he failed to respond to their emails.
AECOM appealed to the EAT, arguing that the tribunal had erred in finding that it had constructive knowledge of the effects of Mr Mallon’s dyspraxia.
The EAT’s Decision
The EAT upheld the tribunal’s decision and dismissed AECOM’s appeal.
It noted that the obligation to make reasonable adjustments is not triggered if the employer does not know, and could not reasonably be expected to know, both that a) the employee has a disability and b) that the employee is likely to be placed at a particular disadvantage.
However, an employer is required to make reasonable enquiries. In this case, Mr Mallon had not responded to several requests to explain his difficulties with the online submissions. The logical explanation for this was that he was having problems with written communication and it was therefore reasonable for the tribunal to have concluded that AECOM should, under the circumstances, have picked up the phone and called Mr Mallon for more information.
The Takeaway
This case serves as a reminder to employers to be proactive in identifying where recruitment processes need to be adapted for applicants with disabilities. This is particularly important when a job applicant indicates they would encounter difficulties with the application process but have not provided specific details. In such circumstances, an employer should ask whether they require any reasonable adjustments and speak to them directly if their condition makes it difficult for them to communicate electronically.
For more information or advice on workplace discrimination, contact our experienced Employment Law team via email.
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