The topic of reasonable adjustments in the context of disability discrimination often poses a number of questions for employers, such as when does the duty apply, what amounts to “reasonable adjustments”, and what happens if the employer does not know of a person’s disability?
The Equality Act 2010 makes clear that the duty to make reasonable adjustments applies when the employer knows or ought to know of a person’s disability and that it does not only apply to employees but also to other categories of people, such as job applicants. The more problematic issues which can find employers on the receiving end of Employment Tribunal claims are when constructive knowledge applies, i.e., should it have known of the disability based on the facts, and if so, what reasonable steps should have been taken?
In the recent Employment Appeal Tribunal (EAT) case of AECOM Ltd v Mallon, it was found that the company’s recruitment process put a job applicant at a substantial disadvantage and that it should have known about this, therefore triggering the duty to make reasonable adjustments.
The Claimant, M, had dyspraxia and applied to AECOM for a position. As part of the standard recruitment process, all applicants were required to complete an online form which they had to access by creating an online profile with a username and password. M asked for an oral application because of his dyspraxia and provided AECOM with some general information about the condition. They exchanged some emails and AECOM insisted that M must complete the online application and also asked him by email on several occasions what he was struggling with, which M did not reply to. M did not tell AECOM that he was unable to create a profile to access the form. M was unsuccessful in applying for the role and he brought a claim against AECOM for failure to make reasonable adjustments.
The tribunal found in M’s favour, deciding that AECOM had applied a provision, criterion or practice (the creation of an online profile with a username and password), which put M at a substantial disadvantage (M was too anxious to provide a username and password because of his dyspraxia). While the tribunal accepted that AECOM did not have actual knowledge of this disadvantage, it did know that M was struggling to complete the online application because of his dyspraxia. The tribunal went on to find that AECOM had constructive knowledge of the disadvantage because it should have telephoned M to discuss further when he failed to provide more information by email. AECOM appealed to the EAT.
The EAT agreed with the tribunal’s decision, finding that it was not reasonable for M to explain himself over email because of his condition and that AECOM should have made further enquiries and attempted to discuss this with him by phone in these circumstances.
The case has, however, been remitted to the tribunal for reconsideration based on a separate appeal point as to whether M was a genuine applicant for the role.
Notwithstanding the above, the message to employers is clear. When faced with a situation involving a disabled employee or job applicant where the extent of what is known about the disability and effect of this is unclear, further reasonable enquiries should be made, given that the duty to make reasonable adjustments may well be triggered. This will then enable employers to consider what reasonable adjustments can be made to ensure the disabled person has the same, fair opportunities as a non-disabled person, removing the substantial disadvantage to them.
If you require any assistance or would like to discuss any specific concerns regarding reasonable adjustments or disability discrimination, please do not hesitate to contact a member of the employment team at firstname.lastname@example.org.
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