EAT ruling on making enquiries into effects of job applicant’s disability
Wednesday 30th August 2023
In AECOM Ltd v Mallon, the EAT upheld an ET decision that the employer failed in its duty to make reasonable adjustments when it did not telephone a job applicant to make reasonable enquiries about his disability.
Mr. Mallon applied for a R&D consultant role with AECOM in August 2018. The application process involved completing an online form, which could be accessed by creating a personal profile with a username and password. Instead of applying online, Mr. Mallon emailed his CV to the HR department and asked to complete the process via an oral application. He explained that this was due to his dyspraxia and provided information about how dyspraxia affects people. The HR Manager emailed Mr. Mallon explaining that the online application should be completed but that he could obtain assistance with submitting the form. In addition, she asked him which parts of the form were causing him difficulties. Mr. Mallon did not respond. The HR manager was not aware that he was unable to create a username and password to access the online application form.
Mr. Mallon successfully argued before the ET that AECOM had failed in its duty to make reasonable adjustments. The ET considered that AECOM should have allowed Mr. Mallon to make a telephone application. Mr. Mallon had been placed at a substantial disadvantage by the provision, criterion, or practice (PCP) of needing to provide a username and password to access the online application and as a result of having to complete the application online. The effects of Mr. Mallon’s dyspraxia resulted in him being too anxious to make the online application. While the ET found that AECOM did not have actual knowledge of the substantial disadvantage, it did have constructive knowledge and should have telephoned Mr. Mallon to obtain more details. It was not reasonable, given Mr. Mallon’s disability, to expect him to explain his difficulties in writing.
Following a review of the case law, the EAT noted that it is not sufficient to show that the employer knew that the complainant was generally disadvantaged by their disability by reason of the PCP, but that it knew or ought to have known that the individual was likely to be placed at the particular substantial disadvantage in question. The employer is required to make reasonable enquiries of that individual and what is reasonable will depend on the circumstances. The ET’s finding was not perverse and it was reasonable to conclude that an employer acting reasonably toward a job applicant with dyspraxia, who had asked for an adjustment to avoid filing an online form, and who had not responded to email, would have telephoned the applicant to obtain specific details of the difficulties.
However, the case was remitted to the ET for reconsideration, following a finding by the EAT of a material factual error on a different point of appeal.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.