The Employment Appeal Tribunal (EAT) judgment in AECOM v Mr Mallon demonstrates the importance of employers considering all options for reasonable adjustments, including for job applicants. In this recent judgment, an individual was awarded £2,700 for an employer not telephoning him to understand why he was struggling to complete an online job application.
Case facts
In this case, a job applicant who had been previously diagnosed with dyspraxia (a condition that affects movement and co-ordination) applied for a role with AECOM ("the Company"). The application for the position involved creating an online profile – requiring applicants to input their email address and password (consisting of eight digits including a special character). Once the online profile had been created, applicants would then complete an online application form for the job role.
Instead of this process, Mr Mallon emailed the Company's HR team directly and requested that he carry out the application verbally, rather than via the online application form. Within this email, he informed the Company that he had dyspraxia and outlined the impact of dyspraxia generally.
A lengthy and seemingly cyclical dialogue then ensued between the HR manager and Mr Mallon – with the HR manager asking Mr Mallon which parts of the form he was finding difficult. In response, each time, Mr Mallon responded stating he would rather complete the online form verbally. At no point did any phone call take place, nor did Mr Mallon clarify which part of the process he was struggling with.
Mr Mallon did not progress with the job application. He subsequently brought a claim against the Company for failure to make reasonable adjustments under the Equality Act 2010 (EqA).
The law
A provision, criterion or practice (PCP) refers to any policy, rule, practice or arrangement that an employer has in place, which may put individuals with protected characteristics (in this case, a disability) at a disadvantage compared to others. Under the EqA, there is a duty on employers to make reasonable adjustments to a PCP if an individual is placed at a substantial disadvantage because of their protected characteristic when compared with people who do not share that protected characteristic.
Findings
In this case, the PCP was the requirement for applicants to create an account by providing a username and password and thereby accessing the written application form. This, the EAT held, put Mr Mallon at a substantial disadvantage which was the anxiety he suffered due to his dyspraxia in setting up the online profile. As a result of this, there was a duty on the employer to make reasonable adjustments, which the Company failed to do.
The EAT held that the Company should have considered that an employee who had struggles communicating online might not be able to explain himself via email, and that given Mr Mallon had difficulty communicating online, it was an obvious reasonable adjustment for the Company to call him. The EAT held that had the Company called Mr Mallon, they would then have understood the reasons for his inability to use the online system.
Lessons to learn?
In trying to justify the reasons for not calling Mr Mallon, the HR manager put forward the argument that Mr Mallon had previously worked for the Company, and in doing so had submitted an online application. What the Company did not know, however, was that Mr Mallon had received assistance from his partner in completing the form. The EAT held that the Company should not have used these as an excuse not to call him – he was a job applicant requiring reasonable adjustments on account of his dyspraxia.
It might be tempting for employers to treat some applications more or less seriously than others, depending on the circumstances. However, this case is a reminder that each application should be dealt with in the same way.
When it comes to determining the seriousness of an application, it is worth noting that in this case, one aspect in considering the legitimacy of the application was purely decided on the character of the individual by the EAT – which is a reminder, again, that:
- Each case will be considered on a case-by-case basis; and
- To air on the side of caution – regardless of how the situation may present itself at face value.
The case shows that in any event, the onus is on the employer to find out more details in instances where they might be expected to make reasonable adjustments. In all cases where an employee expresses any kind of disadvantage that they think they're under – it is important to ask clearly and carefully whether they have fully expressed these and to ask as many questions as possible to get as full a picture as possible, in order to properly evaluate whether reasonable adjustments should be made.
How we can help:
What is reasonable will depend on all the circumstances. So, understanding the importance of neurodiversity alongside PCPs and the reasonable adjustments you may need to put in place in order to facilitate individuals with disabilities could save, as may have been the case with Mr Mallon, a lengthy and costly Employment Tribunal process.
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