Bridge HR articles

The duty on employers to make reasonable adjustments for disabled employees, under the Equality Act 2010, applies to job applicants as well as employees.

This obligation only applies where the employer:

• Knows, or
• ought to know,
• that the applicant is disabled; and
• is likely to be placed at a disadvantage because of that disability.

The case of AECOM Ltd v Mallon

Mr Mallon had dyspraxia. He applied for a role with AECOM and was required, as part of the online application process, to complete a personal profile.

Mr Mallon emailed AECOM his CV which confirmed that he had dyspraxia and cited how dyspraxia affected people generally. He asked to be able to make an oral application because of his disability.

AECOM responded to say that he needed to complete the online form but that he was to let them know if he was particularly struggling with any part of it.

Instead of specifically explaining why this was a struggle for him (he could not create a username or password to access the form), he simply told AECOM, again, that he would prefer to do the form over the phone and make an oral application.

Mr Mallon’s request was not granted as he had not provided AECOM with the specific information that they asked him to.  Therefore, he brought a disability discrimination claim, citing that AECOM had failed to make reasonable adjustments.

The claim was upheld, and Mr Mallon was awarded £2700.

The full judgement can be read here on the GOV website.

What did AECOM get wrong?

The Tribunal’s findings offer employers guidance as follows:

• The requirement to create an account to access the online form, and then to provide information on the online form, did put Mr Mallon, and others like him with Aspergers, at a substantial disadvantage.
  
  
• It was found that AECOM knew that he had difficulty filling out the online form and that they ought to have known that he was at a substantial disadvantage because of that, and ought to have called him to find out exactly why it was a problem for him.
  
  
• That would have been a reasonable adjustment – it was not enough to ask him to come back to them with the details by email. They had failed to do this and, therefore, were guilty of not making reasonable adjustments, giving Mr Mallon a successful disability discrimination claim.
  
  

Key points for employers

This case shows how important it is for employers to have solid processes in place for dealing with issues that arise during recruitment, especially when it comes to making adjustments to the process for disabled applicants.

This case also touched on whether or not Mr Mallon was actually a genuine applicant (he had brought about 60 claims against recruiters or potential employers relating to their recruitment exercises) and his motives had been questioned during those other proceedings – that is another possible defence for employers.

However, in this case, it did not stop this claim from being successful and highlights the importance of:

• Being aware of the fact that this duty extends to the recruitment stage;
• Being proactive with potentially disabled applicants – if AECOM had called Mr Mallon instead of asking him to email them with the information, he likely would not have won his case, so go that extra mile; and
• Having policies in place to guide managers in this area as it is a minefield that is often used by vexatious applicants and robust policies and procedures to deal with recruitment processes are often overlooked but, in our view, are vital.