In the recent case of AECOM Ltd v Mallon the Employment Appeal Tribunal held that an employment tribunal was entitled to find that an employer's online job application form put an applicant with dyspraxia at a substantial disadvantage giving rise to the duty to make reasonable adjustments. The EAT clarified that where an employer has 'constructive knowledge' that a prospective or current employee is likely to be placed at a substantial disadvantage by a 'provision, criterion or practice' (PCP) of the employer, an employer should make reasonable enquiries to understand the difficulties faced and, in this case, should have telephoned the job applicant to ask for more details.
Reasonable adjustments: are you making 'reasonable enquiries'?
This case reminds employers of the importance of evaluating their PCPs to ensure that they are as inclusive as possible from the outset. Thereafter, employers should note that they are under a duty to make 'reasonable enquiries' into the effects of a prospective or current employee's disability to ensure that they can implement reasonable adjustments to avoid the disadvantage where one is identified.
The claimant was a job applicant with dyspraxia who applied for a role with AECOM Ltd. The application process required him to input a username and password to create an online profile which would then enable him to access a short online application form.
Due to his dyspraxia, the claimant emailed his cv to AECOM's HR department and requested that he be permitted to make an oral application due to his disability. He also provided information about the impacts of dyspraxia.
In a series of emails, AECOM insisted that he should complete the online form and offered him assistance with submitting it if necessary. AECOM also made several enquiries as to which parts of the form he had difficulties completing, but he did not provide further information about his struggles with creating a username and password to access the application form and nor did the parties speak over the phone. The claimant's job application was unsuccessful, but he then brought a successful claim against AECOM for failing to comply with its duty to make reasonable adjustments in relation to the application process.
The Tribunal found that AECOM had adopted two discriminatory PCPs which placed the claimant at a substantial disadvantage because it required that:
- candidates create an account to access the application form; and
- candidates answer questions by using the spaces provided on the application form itself.
It held that a reasonable employer ought to have known that an applicant's dyspraxia would make it difficult for them to access the application form online and that it would be difficult for the claimant to provide written communications of this type.
The EAT held that when faced with someone who has indicated that they find written communication difficult, it was reasonable to expect an employer to phone that person to understand their circumstances. The EAT also found that if AECOM had telephoned the claimant and made 'reasonable enquiries' it would then have had sufficient knowledge of the difficulties he faced with the application form to place it under a duty to make reasonable adjustments.
This case is a useful reminder that the onus is on the employer to make the necessary enquiries where the duty to make reasonable adjustments may arise. While an employer is not under a duty to make reasonable adjustments if it does not know, or cannot reasonably be expected to know, both that the applicant or employee has a disability and that it is likely to place them at a substantial disadvantage, it is necessary to make reasonable enquiries where it has actual or constructive knowledge that an individual's disability is likely to place them at a particular disadvantage.
Having an understanding of the disability and the effects it has on the individual is an important step in evaluating the reasonable adjustments to be made. Recent cases have highlighted the potential disadvantages faced by neurodivergent individuals and the diverse range of each condition means that a more tailored approach to making reasonable adjustments can help to alleviate the difficulties encountered. Employers and recruiters should have a basic understanding of these conditions and should ensure they obtain information on the individual's particular difficulties so that reasonable adjustments can be put in place.