Reasonable adjustments – Disability discrimination
The Employment Appeal Tribunal’s recent decision in AECOM Ltd v Mallon [2023] EAT 104 serves as a reminder to employers that the duty to make reasonable adjustments applies not only to employees, but also to job applicants.
Facts
Mr Mallon had dyspraxia which affected his ability to communicate in writing. He had previously worked for AECOM in 2017 but was dismissed during his probationary period due to concerns about his performance. In 2018, Mr Mallon decided that he would like to apply for a similar role based in another office. The application form needed to be completed online, but Mr Mallon emailed AECOM and sent a copy of his CV. He explained that he had dyspraxia and set out how this affected people with the condition and requested that he be allowed to make an oral application by telephone. The HR manager responded, stating that Mr Mallon needed to complete the online application form, but that he could be assisted in doing so if he needed. She also asked him, via email, which parts of the application he was finding difficult. He replied stating that he would prefer to make an oral application.
Mr Mallon lodged a claim in the Employment Tribunal on the basis that the online application form put him at a substantial disadvantage due to his dyspraxia. He claimed that under the Equality Act 2010, AECOM was required to make reasonable adjustments because of his disability.
AECOM argued that Mr Mallon had not suffered a substantial disadvantage as he was not a genuine applicant for the role. Their argument was based on evidence that Mr Mallon had previously been employed within the same team and that he had been dismissed by the same manager who was hiring for the new role. AECOM also argued that there was no duty to make reasonable adjustments because Mr Mallon had not explained his specific difficulties with the online application process, despite being asked to do so several times via email.
Decision of the Employment Tribunal
The Tribunal found that AECOM should have been aware of the substantial disadvantage faced by Mr Mallon as a result of the online application process. In addition, it found that it was unreasonable for the company to expect Mr Mallon to explain the difficulties he had with the online process via email, when he had already explained that he struggled with written communication.
During cross examination, the company’s HR manager accepted that “with hindsight she should have telephoned the Claimant” and that “there was no good reason…. why someone in the HR department…. could not have spoken to him”.
Mr Mallon’s claim for failure to make reasonable adjustments succeeded.
Decision of the Employment Appeal Tribunal
AECOM appealed the Tribunal’s decision on four grounds:
- The Tribunal made a perverse[1] finding that Mr Mallon was a genuine applicant for the role, due to the mistaken belief that it was in a different team than the one he had previously worked in.
- The Tribunal failed to properly assess the company’s knowledge of the substantial disadvantage that Mr Mallon faced as a result of his disability.
- The Tribunal took the wrong approach when considering the need for the company to make further enquiries into Mr Mallon’s disability.
- The Tribunal made an error of law when finding that it was not reasonable for Mr Mallon to be asked to explain the difficulties he faced by email.
The EAT allowed the appeal in part. It agreed with AECOM that the Tribunal had made a perverse finding of fact, as it had found that Mr Mallon was a genuine applicant based on a mistaken belief that the role he had applied for was in a different team.
However, AECOM was aware of Mr Mallon’s difficulties completing the online application form and if the company had wanted specific details regarding his difficulties, they should have telephoned rather than emailing him. The EAT held that it was unreasonable for AECOM to expect Mr Mallon to explain his difficulties with the online application process via email, as he had already explained that his dyspraxia caused him to struggle with written communication.
The EAT sent the case back to the Employment Tribunal to consider whether or not Mr Mallon was a genuine applicant for the role, which may affect the compensation awarded.
[1] A decision will be ‘perverse’ when it is one that no reasonable tribunal, properly directing itself on the law, could possibly have reached