Disability discrimination: Enquiring into the effects of a job applicant's disability

Published 11 septiembre 2023

The EAT has upheld an employment tribunal's decision that an employer should have telephoned a job applicant with dyspraxia to find out why he struggled to complete an online form.

THE FACTS

Mr Mallon suffers from dyspraxia and is disabled for the purposes of the Equality Act 2010. 

Mr Mallon applied for a consultancy role with AECOM Limited. Applicants for the role had to complete a fairly short online application form, which they had to access by creating a personal profile. This involved entering a username and password. 

Mr Mallon emailed the HR department explaining that he would like to apply for the role, and he attached his CV. The CV explained that he had dyspraxia and gave some information about how dyspraxia affects people generally. In bold and capitals, Mr Mallon asked on the CV whether "BECAUSE OF MY DISABILITY" he could do "AN ORAL APPLICATION" as "A 5 TO 10 MIN PHONECALL TO TALK ABOUT MY EXPERIENCE".  AECOM's senior HR adviser, Mrs Parker, emailed back, explaining that he would have to complete the online application but that, if he had concerns about filling out the form, he should let them know. During their email correspondence, Mrs Parker asked Mr Mallon on several occasions to tell her which parts of the form he was finding difficult, and said that he could have assistance to complete the form.   They carried on emailing each other, Mr Mallon explaining that he was happy to do the online form over the telephone and that he would prefer to make an oral application, while Mrs Parker repeated that he needed to complete the form but that he should let them know if he was struggling. Mr Mallon never explained what aspects of the form he was struggling with, nor did he tell Mrs Parker that he could not create the personal profile and log onto the form. Neither of them called the other. Mr Mallon said that this was because, in light of an experience with a previous employer, he was scared of being laughed at.

Mr Mallon was not offered the job. He claimed in the employment tribunal that AECOM had failed to make reasonable adjustments. The tribunal upheld his claim, finding that the requirements to create a personal account to access the online application form and to answer questions on the online form put Mr Mallon at a substantial disadvantage in that, because of his dyspraxia, he was too anxious to provide a username and password so that he could access the form. It would, the tribunal held, have been a reasonable adjustment to allow Mr Mallon to make an oral application by telephone. 

In making this finding, the tribunal had to consider whether AECOM either knew about the disadvantage to Mr Mallon or whether it had constructive knowledge – it should reasonably have known – about the disadvantage.  It held that AECOM did not have actual knowledge of the disadvantage: although it knew that he had difficulty in filling in the online application form because of his dyspraxia, it did not know more than that because Mr Mallon had not identified the specific reasons why completing the online form caused him a particular difficulty.  However, the tribunal found that AECOM did have constructive knowledge of the disadvantage: it ought to have known that he was at a substantial disadvantage because it ought to have telephoned him to ask for more details. The tribunal considered that, given Mr Mallon's difficulties with written communication, it was not reasonable to expect him to explain by email. 

AECOM appealed to the EAT arguing (among other things) that the tribunal had erred in finding that AECOM had constructive knowledge of the effects of Mr Mallon's dyspraxia.

The EAT dismissed AECOM's appeal on this ground of appeal. Referring to existing case law, the EAT noted that the obligation to make reasonable adjustments is not triggered if the employer does not know, and could not reasonably be expected to know, both that a) the employee has a disability and b) that the employee is likely to be placed at the particular disadvantage.  The employer is required to make reasonable enquiries and what is "reasonable" will depend on all the circumstances. Mr Mallon had not responded to several requests to explain his difficulties, and the only explanation for this was that he was having problems with written communication.  It had therefore been reasonable for the tribunal to have concluded that AECOM should, under these circumstances, have picked up the phone and called Mr Mallon for more information. If it had done so, Mr Mallon would have explained the details, and AECOM would have known about his particular difficulties and been under the duty to make reasonable adjustments.

AECOM was successful on another ground of appeal, and the case was remitted to the employment tribunal.

WHAT DOES THIS MEAN FOR EMPLOYERS?

If employers think it's possible that an employee or a job applicant may have a disability, best practice is to be proactive in finding out about the health condition and about the effect that the disability may have on them.  The onus is on the employer to make enquiries.  If employers are not proactive, they may inadvertently discriminate against job applicants or employees with disabilities by failing to make reasonable adjustments or discriminating against them for a reason arising from a disability. 

AECOM Ltd -v- Mr C Mallon [2023] EA-2022-000629-RN