Making reasonable adjustments for neurodiverse job applicants

Neurodiversity is a concept that highlights the different ways in which people’s brains work. An estimated one-fifth of individuals are neurodivergent in some way. This can encompass conditions such as Dyspraxia, Dyslexia, ADHD, and Autism Spectrum, among others. The likelihood is that you already engage neurodiverse workers within your business..

Unfortunately, many employers do not understand the impact that neurodiversity can have on an employee’s ability to participate in a job application or interview processes and struggle to make adjustments to allow individuals to engage on a more equal footing.

Under the Equality Act 2010, employers can only be held liable for discrimination arising from disability or failure to make reasonable adjustments if they had actual knowledge of the employee’s disability, or should reasonably have been aware. Conditions like Dyspraxia and ADHD can amount to a disability and may not be disclosed by employees. If these conditions are not disclosed, they can be difficult for employers to identify.

However, employers have been expected to have knowledge of a disability, where there have been indications from the employee that have not been investigated further. Case law confirms that to understand whether an individual has a disability that may cause them a particular and substantial disadvantage, the employer is expected to make reasonable enquiries.

The case of AECOM Ltd v Mallon is a good example of a case relating to a neurodiverse condition which led to a disability discrimination claim arising from the job application process. It highlights the obligations on employers to make enquiries about how to support neurodiverse individuals, even before they have offered a role.

AECOM Ltd v Mallon

AECOM Ltd required job applications to be made via an online platform, where individuals could create a profile and complete the application form.

Mr Mallon had asked AECOM if he could make an oral application, because of his dyspraxia, but this was never granted.

Instead, AECOM asked Mr Mallon to explain the issues he was experiencing with the online process by email, but he didn’t respond.

Ultimately, Mr Mallon was unsuccessful in his application and brought claims for disability discrimination (a failure to make a reasonable adjustment to offer an oral application).

The Tribunal decided in Mr Mallon’s favour and agreed that the online process (and the failure to vary from this) had put Mr Mallon and others with dyspraxia at a substantial disadvantage.

Whilst AECOM did not have knowledge of the disadvantage Mr Mallon was facing, it should reasonably have been aware that the dyspraxia would cause a disadvantage, or they would have if they’d spoken to Mr Mallon. In addition, the request for Mr Mallon to explain his issue with the online application via email was not reasonable, given his difficulty with written correspondence.

AECOM appealed to the Employment Appeal Tribunal (EAT).

The EAT found that AECOM should have made reasonable enquiries with Mr Mallon about his dyspraxia and how it impacted on him for the purpose of the application process. The EAT explained that AECOM should have called Mr Mallon to discuss this with him, rather than emailing, as Mr Mallon’s lack of responsiveness to emails appeared to be due to his difficulty with written communication. If AECOM had made these enquiries, it would have had the knowledge to be able to support Mr Mallon and make the necessary reasonable adjustments.

Comment

This case highlights the need for employers to be alive to signs of medical and other conditions which may impact on an individual’s ability to participate in the application process, and throughout the employment lifecycle. Therefore, it is important to be mindful of blanket procedures and to deviate from them as necessary, so that we do not overlook talented candidates.