In the recent case of AECOM Ltd v Mallon , the Employment Appeal Tribunal has found that an employer was under a duty to make reasonable adjustments (and failed to fulfil that duty) when its requirement for job applicants to create an online profile and complete an online application form put an applicant with dyspraxia at a substantial disadvantage. This was on the basis that, although it did not have actual knowledge of the specific disadvantage, it ought to have known about this because it ought to have telephoned him to ask for more details.
Mr Mallon had dyspraxia. He applied for a role, and the company’s standard application process was to complete a short online form which could be accessed by creating an online profile (with a username and password). Mr Mallon emailed his CV to HR and asked for a verbal application because of his disability, explaining how dyspraxia affects people generally. HR e-mailed him saying he could have assistance with submitting the form and asking him to explain his difficulties with the online process. However, Mr Mallon did not reply.
When he was unsuccessful in his application, Mr Mallon brought a claim for failure to make reasonable adjustments in relation to his job application under the Equality Act 2010. Employers are under a duty to make reasonable adjustments if they are actually aware of an individual’s disability and that they are likely to be placed at a substantial disadvantage, or if they could reasonably be expected to know this. Both the Tribunal and the Employment Appeal Tribunal found that the company had failed to make reasonable adjustments, in not allowing Mr Mallon to make a verbal application by telephone.
The requirement to create an online profile in order to access the online application form put Mr Mallon at a substantial disadvantage as he was unable to provide a username and password to access the online form, due to his dyspraxia. Although the company did not have actual knowledge of this specific disadvantage, the company ought to have known that Mr Mallon was at a substantial disadvantage, because it ought to have telephoned him to ask for more details when he did not reply to its email enquiries. Given that Mr Mallon had difficulties with written communication, it was not reasonable to expect him to explain this in an email. If the company had telephoned him, he would have provided the specific details on the phone, and thus the company would have had the requisite knowledge of his specific difficulties with the online application process, giving rise to a duty to make reasonable adjustments.
Alex Payton comments:
This case provides a useful reminder that, if an employer knows or suspects that a job applicant or employee has a disability and may be placed at a substantial disadvantage, it should take due care and make reasonable enquiries to understand the disability and the specific disadvantage, to ensure that it does not fall foul of any duty to make reasonable adjustments. In this case, it would have been very easy and entirely sensible for the company to telephone the applicant when it did not hear from him by e-mail.
If you require any advice regarding disability-related issues, the duty to make reasonable adjustments or your recruitment process, please contact a member of the team here.
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