The recent case of Mallon v AECOM Limited demonstrates that an employer does not need to know the specifics of a disabled applicant’s disability, or the difficulties it poses, for the duty to consider reasonable adjustments to apply.
The Claimant, Mr Mallon, applied for a post with AECOM Limited (the Respondent). The Respondent’s recruitment process consisted of an online application. The Claimant had emailed the HR department advising that his condition; dyspraxia caused him difficulties with making an online application and he requested a telephone interview instead, as a supportive measure. The HR department instead emailed the Claimant offering him support with the online process, but they did not agree to the requested telephone call. The Claimant did not respond to the HR department, nor did he disclose the specific difficulties his dyspraxia caused him with the online application. The Claimant’s application for employment failed as a result.
The Claimant lodged a claim against the company for failure to consider reasonable adjustments under s. 20 of the Equality Act 2010.
The Employment Tribunal upheld a complaint of a failure to make reasonable adjustments stating that the blanket approach put the Claimant at a substantial disadvantage.
The company appealed this on the grounds that the Tribunal’s decision that they had constructive knowledge of the Claimant’s disability was flawed.
The Employment Appeal Tribunal (EAT) dismissed the appeal on the basis that the Employment Tribunal was entitled to find that AECOM Limited had constructive knowledge of the Claimant’s disability and should have made reasonable enquiries into the nature of it by way of a phone call instead of email only. The Claimant had already advised he had difficulty with written communications.
The duty to make reasonable adjustments under the Equality Act 2010 applies in two parts:
- Where the employer has knowledge of or should reasonably be expected to have knowledge of (in other words employer should have guessed), an applicant’s or an employee’s disability.
- Where the employer has knowledge of, or should reasonably be expected to have knowledge of, that the individual is likely to be placed at a particular and substantial disadvantage as a result of the disability.
In this case, the Tribunal found that the Respondent had ‘constructive’ knowledge and ought to have known that the Claimant faced a disadvantage due to his dyspraxia, therefore, should have telephoned him for an interview.
This case reinforces the need for employers to be pro-active in their approach to supporting those with disabilities (whether applicants or employees) and highlights the fact that the duty to consider reasonable adjustments can kick in even where there is little information from the person with a disability. Employers should also remember that adjustments may not only be physical in nature (such as ergonomic equipment) but also adjustments in other practices such as methods of communication with an individual, and that obligations can arise with minimal information about the individual’s disability.
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