The duty to make reasonable adjustments is aimed at levelling the playing field by ensuring that disabled persons are not placed at a substantial disadvantage when compared to their non-disabled counterparts.
The recent Employment Appeal Tribunal (“EAT”) case of AECOM Ltd v Mallon [2023] demonstrates that employers need to be aware of the requirement to make reasonable adjustments even during the application/onboarding process, or risk inadvertently discriminating against (potential) employees.
The law
Where an employer’s provision, criterion or practice (“PCP”) places a disabled person at a substantial disadvantage when compared with people who are not disabled, employers have a duty to take reasonable steps to avoid that disadvantage, i.e. make reasonable adjustments for the disabled in question.
Put simply, if an employer has a practice or policy (such as requiring all job applicants to appy for roles online rather than using a paper form) and this practice puts disabled applicants at a substantial disadvantage, the employer must take reasonable steps to help the applicant overcome the disadvantage posed by the online application process.
However, an employer is not required to make reasonable adjustments unless it knows or should reasonably have known, that the individual in question is disabled and likely to be placed at a substantial disadvantage. This means that even if the employer didn’t actually know that the employee (or applicant) was disabled, but they would/should have known if they had asked relevant questions or properly considered all the circumstances and information available to them, then they can still be held liable for a failure to make reasonable adjustments.
Facts of the case
Mr Mallon (the Claimant) was employed by AECOM (the Respondent) between 10 April and 18 December 2017, but was dismissed for unsatisfactory performance during his probationary period. Only 8 months later, in 2018, he applied for another role with AECOM.
The Respondent’s application process required applicants to create an online profile (involving the setting up of a username and password) and complete an online application. This was identified by the Tribunal as the relevant PCP.
The Claimant emailed the Respondent explaining that he had dyspraxia, and requesting that he be allowed to complete his application by telephone. An email exchange ensued, in which the Claimant was asked on numerous occasions to explain his particular difficulties with the online application. Rather than clarifying the difficulties he faced, the Claimant continued simply to state his willingness to complete the application by telephone. In the end, the Claimant did not complete an application, so lost out on the job. He brought a claim for failure to make reasonable adjustments.
The Tribunal agreed with the Claimant that the Respondent had failed to make reasonable adjustments. In reaching this decision, the Tribunal made clear that an employer is under a duty to make such enquiries as are reasonable to ascertain whether an applicant is disabled and, if so, whether they are likely to be placed at a substantial disadvantage because of the relevant PCP. Here, the Respondent was aware that the Claimant was disabled (dyspraxia) and had difficulty completing an online application. The employer did not, however, know any more than this because the Claimant had not identified the specific reasons why completing an online application was a particular difficulty for him.
Despite the Respondent having requested these details (and the Claimant having failed to provide them), the Tribunal concluded that a reasonable employer in these circumstances would have telephoned the Claimant in order to get a better understanding of why the online application process posed a problem for the Claimant. If the Respondent had done so, the Tribunal said, it would have understood that their PCP (the online process) placed the Claimant on account of his disability at a substantial disadvantage, necessitating reasonable adjustments being made, namely, conducting his application via telephone.
By failing to do so, the Respondent had discriminated against the Claimant by failing to make reasonable adjustments.
The appeal
The Respondent appealed the Tribunal’s decision to the Employment Appeal Tribunal (“EAT”), but the appeal was largely unsuccessful (failing on three of four grounds).
On the question of the employer’s knowledge, the EAT reminded the Respondent that the question to be asked is whether the Respondent knew, or ought reasonably to have known, that the Claimant had a disability and was, by reason of that disability, placed at a particular disadvantage.
The EAT therefore agreed with the Tribunal that the Respondent would have known that the Claimant was at a substantial disadvantage if they had simply called him to discuss it. In the EAT’s opinion, it was not reasonable for the Respondent to expect the Claimant to explain these matters in an email – a phone call was a reasonable measure which would have provided the Respondent with the requisite knowledge that reasonable adjustments were necessary.
The Respondent’s one successful ground of appeal related to whether the Claimant was a ‘genuine applicant’. The Claimant had previously worked for the Respondent and was dismissed during an extended probationary period due to his performance. The EAT found what the Tribunal had overlooked; that the job being applied for was with the same team as under the Claimant’s previous role, which called into question whether the Claimant had genuine intentions when applying for the job.
That issue has been remitted back to the Tribunal to reconsider whether the Claimant’s application was genuine. It should be noted that the claim that he brought against AECOM was one of about 60 claims that he has made against recruiters and potential employers relating to their recruitment processes. One of those claims was struck out on the ground that Mr Mallon had deliberately made an unrealistic job application with the expectation of being rejected so that he could bring a claim. We await the reconsidered decision of the Tribunal in this case, although it is important to note that the result will have no bearing on the general principles of law set out above in relation to the duty to make reasonable adjustments and ask relevant questions.
Comment
Employers and umbrella companies should be alive to the fact that staying on the right side of the duty to make reasonable adjustments sometimes requires a proactive approach and, importantly, that the duty can arise even before a person has been offered employment. Reasonable efforts must be made to understand the nature of a person’s physical or mental health (i.e whether it amounts to a disability), and a subsequent consideration as to how the employer’s practices and processes may disadvantage that person. If, on consideration, it appears that the person in question will be placed at a substantial disadvantage, then the duty to make reasonable adjustments is triggered.
This bulletin is for general guidance only and should not be used for any other purpose.
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