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Home / News and Insights / Blogs / Employment Law / 429: EAT considers duty to make reasonable adjustments to online job application process for disabled candidate

Under the Equality Act 2010, employers are under a duty to make reasonable adjustments for disabled job applicants as well as disabled employees. This means that where an application process puts a disabled applicant at a substantial disadvantage compared to a non-disabled applicant, employers must take reasonable steps to avoid that disadvantage. However, this obligation only applies where an employer knows, or ought to know, about the disability and that the individual is likely to be at a substantial disadvantage.

In AECOM Ltd v Mallon, the EAT upheld a Tribunal decision that an employer failed to make reasonable adjustments where the requirement to create an online profile and complete an online application form put a disabled job applicant at a substantial disadvantage.

Mr Mallon, who has dyspraxia, was initially employed by AECOM Ltd in its Birmingham office but was dismissed in December 2017 for unsatisfactory performance after an extended probationary period. He subsequently brought a disability discrimination claim which was settled without admission of liability and with an assurance that he could apply for future roles.

In August 2018, Mr Mallon tried to apply for a job at AECOM’s London office. Applicants were required to create a personal profile by providing their email address, a username and password, and to complete a short online form. Mr Mallon emailed AECOM’s HR department with his CV, which included information about dyspraxia and its effects on his ability to communicate in writing, and asked to make an oral application instead. During subsequent email correspondence, the HR manager confirmed that Mr Mallon was required to complete the online form but that he should let them know if he was struggling with any aspect of it. Mr Mallon did not respond or explain the difficulties he had with the online process but repeated his request to make an oral application. AECOM’s HR manager did not telephone him to discuss this further.

Mr Mallon then brought a disability discrimination claim alleging that he had been unable to apply for the role because AECOM had failed to make reasonable adjustments. The Employment Tribunal upheld his claim. AECOM was aware that due to Mr Mallon’s dyspraxia, he was struggling to complete the online application form. Although Mr Mallon had not fully explained his difficulties, AECOM ought to have known that he was at a substantial disadvantage and should have telephoned him for clarification. It was not reasonable to expect him to explain in an email given that he had problems communicating in writing. Mr Mallon was awarded £2,000 in compensation for injury to feelings plus £700 interest.

On appeal, the EAT agreed that AECOM had constructive knowledge of the substantial disadvantage caused to Mr Mallon by the requirement to apply online. The Tribunal had been entitled to find that given his dyspraxia, it was not reasonable to expect him to explain his difficulties by email. A reasonable employer would have made further enquiries by telephone to understand his situation. Although AECOM’s appeal failed on these grounds, Mr Mallon’s claim was nevertheless remitted to the same Employment Tribunal to reconsider whether he was a genuine applicant for the role given his previous unsuccessful employment with AECOM and the fact that he had already made around 60 disability discrimination claims against recruiters or potential employers relating to their job application processes.

This case illustrates the importance of making reasonable enquiries, by telephone if necessary, to establish whether a job applicant is disabled and to identify any adjustments required to application and assessment processes. It is worth noting that although job applicants may not suffer financial loss, compensation for injury to feelings is often awarded in discrimination claims. The facts of this case are also a reminder that recruitment procedures should cover an employer’s approach to applications by former employees who have been dismissed for performance or conduct issues, and by employees who have previously brought Tribunal claims.

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