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Employer under duty to make further enquiries of disabled job applicant

The Employment Appeal Tribunal (‘EAT’) case of AECOM Limited v Mallon serves as a useful reminder that reasonable enquiries should be made into the effects of a job applicant’s disability.

Facts of the case

Mr Mallon, who has dyspraxia, applied for a consultant role with AECOM Limited (‘AECOM’).  The application process required applicants to complete a short online form.  Mr Mallon sent his CV to AECOM and asked to make his job application to AECOM Limited orally, rather than online, because of his disability.  An HR Manager informed him by e-mail that he had to complete the application online but could get assistance with submitting the form if necessary.  She asked him to let her know which parts of the form he was finding difficult to complete.  He didn’t tell her that he was unable to create the username and password that were required to log onto the form.  Neither Mr Mallon not the HR Manager telephoned each other to discuss this.  Mr Mallon was unsuccessful with his application and issued a claim in the employment tribunal that AECOM had failed to make reasonable adjustments under the Act.

Employment Tribunal decision

The employment tribunal upheld Mr Mallon’s claim, finding that AECOM had failed to make reasonable adjustments for his disability.  AECOM had applied a provision, criterion or practice (‘PCP’) by requiring candidates to create an account to access the online form and to answer the questions on that form.  The PCP put Mr Mallon at a substantial disadvantage due to his dyspraxia.  Whilst the tribunal held that AECOM didn’t have actual knowledge of the disadvantage to Mr Mallon as he did not provide specific detail of why completing an online form was problematic, it did find that AECOM had constructive knowledge of the disadvantage as it ought to have telephoned Mr Mallon for more information in relation to his difficulties.  AECOM appealed against the tribunal’s decision arguing, among other things, that the tribunal were incorrect in finding that it had constructive knowledge of the disadvantage to Mr Mallon.

EAT decision

The EAT noted that what is required is not that the employer knows that the claimant is generally disadvantaged by their disability but that it knows that they are likely to be placed at the particular disadvantage.  Whether an employer reasonably ought to have known this, requires the employer to make reasonable enquiries of the individual.  The EAT held that the tribunal had been entitled to find that AECOM ought to have known of Mr Mallon’s disadvantage.  Mr Mallon did not respond to the HR Manager’s e-mail correspondence, despite repeated requests.  It had therefore been reasonable for the tribunal to conclude that, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form but failing to respond to a question in writing, would have picked up the phone to that individual to understand their situation.  If AECOM had made reasonable enquiries by phone, it would then have actual knowledge of his particular difficulties such that it would be under a duty to make reasonable adjustments.

When an employer is notified that a job applicant has a disability, it should take care to make reasonable enquiries of the effects of that disability to ensure that any reasonable adjustments are made.