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Tag: AECOM Limited v Mallon

Does an employer need to know the specifics of a disabled person’s substantial disadvantage before being required to make reasonable adjustments?

No, said the EAT in AECOM Limited v Mallon (available here).

Facts: The employee, Mr Mallon, has dyspraxia (a condition that affects movement and co-ordination). He applied for a consultant role at AECOM Limited (‘AECOM’) where he had previously worked and been dismissed (during probation). The application process involved creating an online profile – requiring applicants to input their email address and password (consisting of eight digits including a special character). Once the online profile had been created, applicants would then complete an online application form. Instead of following this process, Mr Mallon sent his CV to AECOM and asked to make his job application orally because of his disability (which he named as dyspraxia and, in general terms, outlined how the condition affects people).

Instead of arranging to speak to Mr Mallon, an HR Manager replied to him by email and told him that he had to complete the application online, but could get assistance with submitting the form if necessary. She asked him to let her know which parts of the form he was finding difficult to complete. Mr Mallon replied that he would rather complete the online form verbally. At no point did any phone call take place, nor did Mr Mallon clarify which part of the process he was struggling with (including not saying that he could not even create a username and password to enable him to log on to the online form).

Mr Mallon was unsuccessful in his job application and subsequently brought a Tribunal claim for failure to make reasonable adjustments for his disability under the Equality Act 2010. AECOM argued that the duty to make reasonable adjustments was not engaged because Mr Mallon had failed to explain his specific difficulties, despite being asked to do so several times.

Tribunal decision

The Tribunal upheld Mr Mallon’s claim.

While AECOM did not have actual knowledge of the disadvantage caused by Mr Mallon’s disability (because Mr Mallon had not identified the specific reasons why completing an online form was difficult for him), it ought to have known this and therefore had constructive knowledge. AECOM should have made reasonable enquiries to find out more about his condition. For example, by phoning him. Given Mr Mallon’s struggles with written communication, it was not reasonable to expect him to explain these matters in an email.

This meant AECOM was under a duty to make reasonable adjustments to help Mr Mallon avoid the substantial disadvantage caused by the provision, criterion or practice (PCP) that it had put in place. The PCPs included expecting applicants to create an online account and to complete an online form.

AECOM appealed.

EAT decision

The EAT dismissed AECOM’s appeal.

The Tribunal had been entitled to conclude that an employer acting reasonably, when faced with this situation, would have picked up the phone to speak to the disabled applicant to understand their situation. If AECOM had made reasonable enquiries it would have known his particular difficulties with the online application process, which meant that it was under a duty to make reasonable adjustments.

Implications: This is helpful clarification that employers need to make reasonable enquiries into the effects of a job applicant’s disability.

When an employer is notified that a job applicant has a disability, it should take care to find out about the effects of that disability. That includes picking up the phone to the applicant if they do not respond in writing – particularly where their disability might impact on their ability to do so.

If the outcome of the employer’s enquiry is that the applicant is put at a disadvantage by a PCP, the duty to make reasonable adjustments applies. The employer should be flexible in its approach to making such adjustments including, as in this case, allowing the applicant to carry out the application process by telephone.

Ultimately, what is a reasonable will depend on all the circumstances. Therefore understanding the individual impacts of different neurodiverse conditions, alongside PCPs and the reasonable adjustments you may need to make, could save the costs of an expensive Tribunal process


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