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Kathryn Clapp

Senior Counsel – Knowledge

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Autor

Kathryn Clapp

Senior Counsel – Knowledge

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20. September 2023

Law at Work - September 2023 – 2 von 6 Insights

An employer's obligation to make reasonable adjustments when it subjected a disabled job applicant to a discriminatory PCP is considered by the EAT

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Why the case matters

In AECOM Ltd v Mallon, the EAT upheld a tribunal's finding that an employer's requirement for job applicants to create an online profile and complete an online application form put an applicant with dyspraxia at a substantial disadvantage. The employer was then under a duty to make reasonable adjustments. 

Under the Equality Act 2010 (2010 Act) employers are under a duty to make reasonable adjustments for disabled job applicants and employees, if they knew or ought reasonably to have known that the individual is disabled and is likely to be placed at a substantial disadvantage because of their disability.

Where a provision, criterion, or practice (PCP) applied by the employer puts a disabled person at a substantial disadvantage in comparison with a person who is not disabled, the employer must take reasonable steps to avoid the disadvantage.

Relevant facts

Mr Mallon, who has dyspraxia, was dismissed by AECOM Ltd in 2017 for unsatisfactory performance after an extended probationary period. His claim for disability discrimination was settled without admission of liability, and he was reassured that there would be no restriction on him applying for future roles with the same employer. 

In 2018 Mr Mallon applied for a role with AECOM which required candidates to create a personal profile (by providing their email address and creating a username and a password) and completing an online application form. He emailed the HR department, attaching his CV, explaining that he had dyspraxia and asked, in bold capitals, if he could make an oral rather than written application because of his disability. He requested that this be arranged by email and stated that he would supply a telephone number if AECOM emailed him. Via email, the HR manager repeated that Mr Mallon needed to complete the online form, but to let them know he was having difficulty with it. Mr Mallon did not explain that he could not create a username and password to access the form but continued to state that he was happy to do the online form over the phone and would prefer to make an oral application. The HR manager did not telephone the Mr Mallon. He was unsuccessful with his application and brought a disability discrimination claim in the employment tribunal arguing that AECOM had failed to make reasonable adjustments in relation to his job application under the 2010 Act.

The tribunal upheld his claim. It held that the employer applied a two-part provision, criterion or practice PCP as candidates were expected to create an account, by providing a username and password to access the online form and then answer questions on it. The employer knew that Mr Mallon had difficulty completing it because of his dyspraxia, and ought to have known that he was too anxious because of his dyspraxia to provide a username and password to begin accessing the online form so his failure to explain his specific details by email was reasonable. If it wanted further details, it ought to have telephoned him when he had failed to respond to emails. In not allowing M to make an oral application by telephone, AECOM had failed to make reasonable adjustments for his disability.

The tribunal rejected an argument by the employer that Mr Mallon was not genuinely applying for the new 2018 role. The tribunal considered that it was a fresh start and while other applicants might have chosen not to apply to the same employer where they had previously failed their probationary period, assessing his character, considered that he would not have regarded this as an inevitable impediment to succeeding with the new application. The tribunal awarded the Mr Mallon £2,000 for injury to feelings, together with interest of £700.

The employer appealed. 

Decision

The EAT upheld the tribunal decision on whether Mr Mallon was put to a substantial disadvantage as the employer ought to have known about his difficulties with accessing the online form and there was no good reason why someone could not have spoken to him. Had AECOM made reasonable enquiries by telephoning him, he would have provided the specific details. The employer would therefore have had knowledge of his particular difficulties to place it under a duty to make reasonable adjustments.

The EAT allowed the employer's appeal concerning whether or not Mr Mallon was a genuine applicant for the 2018 role. Although the tribunal had found that Mr Mallon was seeking to return to work for the same (large) employer where he had previously failed a probationary period, he was, in fact, seeking to return to a similar job in the same team. Applications were considered by the line manager who dismissed him from a similar role for poor performance eight months' previously. The EAT remitted this ground of the appeal back to the same tribunal to reconsider whether Mr Mallon was a genuine applicant.

Comment

Recruitment procedures should be clear, thorough and ensure that disabled employees are treated fairly. In this case it was clear that communication by phone with a disabled job applicant would have been appropriate and had been indicated as a way forward by the employee himself in this case. 

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