The Employment Appeal Tribunal (EAT) has held in AECOM Ltd v Mallon that an employer was under a duty to make reasonable adjustments when its 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 claimant, who has dyspraxia, was employed by AECOM Ltd (AECOM) between April and December 2017 in its Birmingham office. Following an extended probationary period, AECOM dismissed him for unsatisfactory performance and the claimant brought a disability discrimination claim which was settled without admission of liability. In August 2018 he wished to apply for another role with AECOM in London. In order to complete the short online application form candidates needed to create a personal profile.
The claimant emailed AECOM's HR department attaching his CV, which included information about his dyspraxia, and asked that he be permitted to make an oral application because of his disability. AECOM's senior HR manager contacted the claimant stating that he needed to complete the online form, but that he should let them know if he was struggling with any aspect of it. He continued to state that he was happy to do the online form over the phone and would prefer to make an oral application. He did not phone AECOM as he was afraid of being laughed at given his previous experience with another employer. The claimant was unable to make his application and brought a disability discrimination claim against AECOM arguing that there had been a failure to make reasonable adjustments.
The tribunal found that there had been a failure to make reasonable adjustments in not allowing the claimant to make an oral application by phone. It held that AECOM had applied a provision, criterion or practice (PCP), in that candidates were expected to create an account by providing a username and password in order to access the online application form and to answer questions in this online format. This put the claimant at a substantial disadvantage because he was too anxious, due to his dyspraxia, to provider a username and password to begin accessing the online form.
The EAT upheld the tribunal's decision. It held that the tribunal had been entitled to find that AECOM ought to have known of the disadvantage. AECOM had not received a response to its email requests for the claimant to explain his difficulties and the only explanation for this was that he was having difficulties with written communication. It was reasonable to conclude that an employer acting reasonably would have picked up the phone to a person with a dyspraxia diagnosis asking for an adjustment, in order to understand their situation.
Take note: In Mallon the employer knew of the claimant's dyspraxia and had failed to engage with his request for an adjustment to the application process to make allowances for his condition. This decision shows the importance of putting in place reasonable adjustments for disabled candidates at the recruitment stage to ensure that they do not miss out on job opportunities.
