UK: Reasonable Adjustments For Disabled Job Applicants

The Employment Appeal Tribunal (EAT) has considered whether an employer was under a duty to make reasonable adjustments to the recruitment process for a job applicant with dyspraxia.

AECOM Ltd v Mallon [2023] EAT 104

Facts of the case

The claimant, Mr Mallon (M), has dyspraxia. In 2017 he had been dismissed by the employer, AECOM Ltd, after an unsuccessful probationary period. His subsequent disability discrimination claim was settled without admission of liability. In 2018, M indicated his intention to apply for another role with the company. Applicants for the role were required to complete an online application form and complete a personal profile.

M emailed the company's HR department and attached a copy of his CV. He requested to make an oral application because of his disability, details of which were included in his CV. Following email correspondence, M was told that he needed to complete the online form, but he should let the company know if he was struggling with any particular aspect of it. He repeated his wish to make an oral application and said that he was happy to complete the form over the phone. The HR manager did not call M.

M brought a further claim for disability discrimination, arguing that AECOM had failed to make reasonable adjustments. His claim was upheld by the employment tribunal, which found that M had been put at a substantial disadvantage due to the employer's requirement that he complete the online application form. The tribunal rejected AECOM's argument that M was not genuinely applying for the role, in light of his previous claim against the company.

AECOM appealed the tribunal's decision to the EAT.

EAT decision

The EAT upheld the employer's first ground of appeal and remitted the case to the same tribunal to reconsider whether the claimant's application for the role was genuine. M was seeking to return to a similar job in the same team and would be reporting to the same line manager who had previously dismissed him. The tribunal's conclusion that the new job was a different role and could be regarded as a 'fresh start' were perverse.

However, the remainder of the employer's appeal was dismissed by the EAT. AECOM had knowledge of the substantial disadvantage to M caused by the application process. The EAT agreed with the tribunal's finding that there was no good reason why someone could not have spoken to M to discover his particular difficulty with the online application form, which he had been reluctant to explain by email. AECOM had repeatedly asked M to explain his difficulties by email and he had failed to do so. Assuming that he was a genuine applicant for the role, the only possible explanation was that he was having difficulties with written communication. An employer acting reasonably in these circumstances would have picked up the phone to understand the individual's situation.

The Birketts view

This case illustrates some of the difficulties for employers in dealing with job applications from ex-employees, who may have departed under a cloud and pursued previous tribunal claims. It is important to deal with such applications in accordance with standard recruitment procedures, particularly to avoid a potential claim for victimisation.

In circumstances where an applicant has a disability, particularly where they indicate potential difficulties with the recruitment process, adjustments should be properly considered following consultation with the individual.