Reasonable adjustments in the application process

The case of AECOM Ltd v Mallon [2023] EAT 104 considered whether there was a duty on an employer to make reasonable adjustments to its requirement for job applicants to create an online profile and complete an online application form.

Employers are under a duty to make reasonable adjustments for disabled job applicants and employees, where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with a person who is not disabled. Employers are not obliged to make reasonable adjustments unless they either know, or ought reasonably to know, that the individual is disabled and likely to be placed at a substantial disadvantage because of their disability.

Mr Mallon, who has dyspraxia, was employed by AECOM until 18 December 2017 when he was dismissed on the grounds of unsatisfactory performance. Mr Mallon brought a disability discrimination claim which was settled without admission of liability. The terms included an assurance that there would be no restriction on him applying for future roles.

In August 2018, Mr Mallon applied for another role with AECOM. He was required to create a personal profile (by providing his email address and creating a username and a password) and complete a short online application form.

Mr Mallon emailed AECOM's HR department, attaching his CV. The CV included the information that he had dyspraxia and information about how dyspraxia affects people generally. He asked, in bold capitals, that he be permitted to make an oral application because of his disability and asked for this to be arranged by email. He stated that he would supply a telephone number if AECOM emailed him. AECOM emailed Mr Mallon, asking him to complete the online form, but that he should let them know if he was struggling with any aspect of it.

In email correspondence, Mr Mallon did not explain that he could not create a username or password but maintained that he would prefer to make an oral application. AECOM did not telephone Mr Mallon and Mr Mallon did not telephone AECOM.

Unable to make his application, Mr Mallon brought a disability discrimination claim arguing that AECOM had failed to make reasonable adjustments.

Employment Tribunal Decision

The employment tribunal upheld the claim. AECOM was found to have applied a PCP by requiring candidates to create an account to access the online form and to answer the questions on that form. The PCP put Mr Mallon at a substantial disadvantage because of his disability (dyspraxia). The tribunal accepted that AECOM did not have actual knowledge of the disadvantage to Mr Mallon (because he did not provide specific detail of why completing an online form was problematic) but found that it had constructive knowledge of the disadvantage (because it ought to have telephoned Mr Mallon for more information).

AECOM appealed against the tribunal’s decision arguing, among other things, that the tribunal were incorrect in finding that it had constructive knowledge of the disadvantage.

Employment Appeal Tribunal

The EAT upheld the Tribunal’s finding and dismissed the appeal. The EAT held that the tribunal had correctly addressed whether AECOM had knowledge of the substantial disadvantage; it had correctly addressed whether AECOM had made reasonable enquiries of Mr Mallon; and it had been entitled to find that it had not been reasonable to expect Mr Mallon to explain his difficulties by email.

Comment

The case illustrates the importance of having robust internal procedures for dealing with issues that might arise during recruitment exercises. Recruitment procedures should include guidance on managing applications from previous employees and those who have brought tribunal claims. Picking up the telephone to understand a disabled job applicant's needs might seem obvious but in this case was overlooked and was, ultimately, fatal to AECOM’s defence that it did not have knowledge of the disadvantage he experienced.