Employment Law Cases
Reasonable adjustments: scope of duty to enquire
An employer’s failure fully to enquire into a dyspraxic job applicant’s needs when he was applying online led to a finding of disability discrimination for failure to make reasonable adjustments.
Mr Mallon has dyspraxia - a disorder that affects fine and gross motor skills, motor planning, and co-ordination. He applied for a role at AECOM and emailed his CV as well as including information about how dyspraxia affected people generally. AECOM’s standard application process requires job seekers to complete a short online form, which could be accessed by creating a personal profile with a username and password. In email communications, AECOM’s HR manager told Mr Mallon that he’d have to complete the online application form but that he could get help doing so if necessary. The HR manager also asked several times which parts of the form he was finding difficult to complete. Mr Mallon didn’t tell the HR manager that he couldn’t create a username or password. There was no telephone communication between Mr Mallon or the HR manager: everything was done via email. Following his lack of success in the application, Mr Mallon brought a tribunal claim against AECOM of disability discrimination for failure to make reasonable adjustments to its job application process. He argued that a reasonable adjustment should have been made to allow him to submit an application orally rather than online, as his dyspraxia made it difficult to complete online applications. Finding that AECOM had constructive (as opposed to actual) knowledge of Mr Mallon’s disability, a tribunal upheld his claim. AECOM appealed.
The appeal was dismissed.
The EAT began by stating that an employer is not subject to the duty to make reasonable adjustments if it doesn’t know - and couldn’t reasonably be expected to know - that the applicant (or employee) has a disability and that he or she is likely to be placed at a substantial disadvantage. This requires an employer to make reasonable enquiries – and what is reasonable will depend on the specific facts.
With this mind, the EAT could find little wrong with the tribunal’s approach. It was not reasonable to expect Mr Mallon to explain matters via email. Given that he’d not responded to AECOM’s emails, the only explanation was that he had problems with written communications. A reasonable employer faced with such a scenario would have picked up the phone to sort matters out.
While AECOM’s appeal on this issue was dismissed, it was successful on another ground of appeal – that the tribunal had made a factual error when assessing whether Mr Mallon was actually a genuine applicant for the advertised role.
This case is a useful reminder to HR that applicants can bring discrimination claims in relation to matters that occur before employment and that there are applicants such as Mr Mallon who will not hesitate to bring claims. Indeed, it appears he has brought numerous similar claims against employers up and down the country and in Northern Ireland, with some reluctance by the tribunals in some cases to dismiss his claims on the basis of his numerous applications.