Douglas Strang

Employers must, therefore, consider and comply with the duty to make adjustments when considering to whom they offer work, as well as in recruitment arrangements.

The recent Employment Appeal Tribunal (EAT) decision in the case of AECOM Ltd v Mallon shows the legal consequences which can follow if the employer gets it wrong.

Background

The claimant applied for a job vacancy as an R&D consultant with the respondent. Interestingly, he had, some 8 months earlier, been dismissed by the respondent from a role in the same team (albeit a different office) due to poor performance, and the hiring manager for the new role was the claimant’s previous line manager.

The claimant had expressed his interest by email. He advised that he had dyspraxia (a developmental disorder affecting movement and co-ordination), which he considered this to be a disability, and requested to make an oral job application rather than complete the online application form. He included some literature about how dyspraxia affects people generally. His evidence at the tribunal was that due to his dyspraxia, he was too anxious to provide a username and password to even commence the online application process.

The respondent believed the claimant had completed online forms in the past (and the tribunal noted he had over a period of time made approximately 60 employment tribunal applications using online forms). He was told by the company, in response to his request, that he needed to complete the online form. The respondent repeatedly asked what specific difficulty the claimant was having with the online form, and indicated that assistance could be provided. The claimant did not answer this question. No online application was made. He was not allowed to apply orally, and his application was therefore not progressed.

The claim and the employment tribunal decision

The claimant argued he had been subject to disability discrimination as the respondent had failed to make reasonable adjustments for his dyspraxia by allowing an oral application for the job.

The Respondent argued that it had not been under a duty to make reasonable adjustments, noting that for such a duty to arise, an employer must be aware (or should be aware of):

• The disability suffered by the employee/applicant and
• The disadvantage suffered by them due to that disability.

The company argued that it was not aware of the specific nature of the disadvantage suffered by the claimant, because the claimant would not tell them, and so the company was under no duty to make any adjustments.

The employment tribunal noted that the law requires an employer, if they are aware in general terms of a difficulty suffered by an employee/applicant, to make reasonable inquiries to understand the specifics, so they can then make reasonable adjustments. In this case, the employer had only asked for details of the specific disadvantage by email. It was not reasonable to expect the claimant to explain the difficulties by email (and the respondent should have realised this given his request to make an oral job application). The respondent should have phoned the claimant to ask for details, and the claimant would then have provided the required information to enable the employer to consider adjustments to the recruitment process. The respondent’s witness had accepted that she “should” have called the claimant.

The employer had not made reasonable inquiries with the claimant and as a result, the disability discrimination claim succeeded.

Employment Appeal Tribunal

The EAT upheld the tribunal’s decision as it had not made any legal errors in reaching its conclusion. The respondent had failed to take the reasonable step of calling the claimant to find out more about his condition and the disadvantage he was placed at. As such the employer could not, as a defence, rely on its lack of actual knowledge of the specific disadvantage faced by the claimant.

However, the employer’s appeal was upheld by the EAT on one point, and the employment tribunal was asked to think again about whether the claimant’s job application was genuine, given his history of being dismissed from a job in the same team. If his application was not genuine, then his claim could not succeed.

Conclusion

This case is an excellent example of how the obligation placed on the employer at recruitment stage, to accommodate disability, can be quite onerous. While the employer had asked the claimant by email to explain what difficulties he faced with an online application process, so that adjustments could be considered, their failure to call him to discuss these issues meant that the claim of discrimination succeeded.

Whenever an applicant advises an employer that they have a disability, and they seek adjustments to the recruitment process, great care must be taken.

Douglas Strang is a senior associate at BTO LLP