Employment & Pensions Blog: Reasonable adjustments for job applicants

In AECOM v Mallon, the EAT has held an employer does not need to know the specifics of a disabled person’s substantial disadvantage in order to make reasonable adjustments. 

Background

Mallon was employed by AECOM until December 2017, when he was dismissed during his probation due to unsatisfactory performance. In August 2018, Mr Mallon wanted to apply for another role with AECOM which required him to create an online profile. Mallon emailed AECOM, with information about his dyspraxia and asked if he could make an oral application due to his disability. The HR manager repeated that he needed to complete the online form. Mallon brought a claim of disability discrimination for failure to make reasonable adjustments to the job application process. Mallon contended that AECOM applied a provision, criterion or practice (PCP) by requiring submission of an online application form, which put him at a substantial disadvantage.

The proceedings

The ET upheld Mallon’s claim, rejecting AECOM’s argument that Mr Mallon was not genuinely applying for the 2018 role. AECOM were held to have applied a two-part PCP which put the Claimant at a substantial disadvantage. It was enough that AECOM knew the Claimant had dyspraxia to make reasonable adjustments, even if they did not know the specifics as to how his disability put him at a disadvantage. AECOM appealed which was unsuccessful in the EAT save in relation to one point arising from a misunderstanding of the evidence which was remitted to the same Tribunal.

Comment

Employers are under a duty to make reasonable adjustments for job applicants if they have knowledge of the applicant’s disability. The duty is not anticipatory and only arises where a disabled candidate applies and informs the employer of any disability and or reasonable adjustments required. Both the ET and EAT stated in this case that there is a requirement for the employer to make reasonable enquiries as to the extent of the difficulties a disabled applicant may face. If an employer has knowledge of an applicant’s disability, picking up the phone and speaking to the applicant to understand their needs may be the easiest way to assess what disadvantage they may be facing and what can be done to assist.

Where a disadvantage arises, and it relates to the ability of the disabled person to perform during the recruitment process, the purpose of making an adjustment is to eliminate the practical difficulty and create a level playing field for the disabled person. Disability discrimination risks during a recruitment process don’t just apply to online application forms. Applicants can also face disadvantages during the interview process and may require interview questions in advance as a reasonable adjustment.

It is important that employers review each situation on a case by case basis as an adjustment in one case may not necessarily alleviate the disadvantage for another applicant with the same disability.

If you need assistance with your recruitment process, or a discrimination tribunal claim, please contact a member of the Employment Team.