The recent Employment Appeal Tribunal (EAT) case of AECOM Limited v Mallon has thrown light on the burden for employers to make reasonable adjustments in job applications for disabled applicants.
The case serves as a helpful reminder of a situation in which employers should adjust their recruitment practices to comply with their duty to make reasonable adjustments.
Background
Mr Mallon applied for a consultant position at AECOM. Their application process required candidates to create an online login to complete the application form. Mr. Mallon, who has dyspraxia, emailed the company attaching his CV and providing information about his dyspraxia. He asked whether, due to his disability, he could submit an oral application rather than completing the online form.
The HR manager engaged in an email exchange with him about which aspects of the online form he was finding difficult but he didn’t give any specific response, merely repeating his request. The HR manager told him that he would still need to complete the online form but assured him that assistance would be available if he wanted.
Mr Mallon was unsuccessful application and brought an Employment Tribunal claim alleging that AECOM had not made reasonable adjustments for his disability. In response, AECOM said that the obligation to make reasonable adjustments had not arisen because Mr. Mallon had not elaborated on his specific challenges, despite being asked several times. They said that for such a duty to arise, an employer must be aware of:
- The disability and
- The disadvantage that the disability causes
Although it seemed to the employer, and to us, that the individual here was being difficult in the face of reasonable question and an offer of help, he won at the employment tribunal, which said that the employer should have made the effort to phone the claimant to ask for details of why the form was posing him a problem.
On appeal, the EAT said that the ET was justified saying that a reasonable employer would have done that and that there was enough information available for them to recognise that it was a disability-related problem. So the obligation to make reasonable adjustments existed and they had failed to comply with it.
Conclusion
What we haven’t told you so far is that Mr Mallon may well have baited AECOM for the purpose of bringing an employment claim. We say this because (it has been reported) that he is at of today on his 30th employment tribunal claim. The initial employment tribunal noted that Mr Mallon had lost multiple tribunal claims against employers in the last two years – including one in which he lost so badly that he was ordered to pay the employer’s costs of nearly £4k. The EAT called him a vexatious litigant.
This case is a good example of duty for employers to make reasonable adjustments in job applications and how knowing when to do so isn’t always plain sailing.
Although the employer had requested by email that the claimant describe any challenges he encountered with the application procedure, their failure to call the claimant meant that he won his case.
It’s clear that considerable care must be taken whenever an applicant advises an employer on their disability and is seeking adjustments. It is best to for an employer to err on the side of caution, even if they think that the individual is being difficult.
Image used under Attribution-ShareAlike licence courtesy of Flazingo Photos