Failing to make reasonable adjustments in an application process
In the recent appeal case of AECOM Ltd v Mr Mallon, the employment appeal tribunal (EAT) upheld the earlier employment tribunal (ET) decision that a failure to make reasonable adjustments to the company’s application process amounted to disability discrimination.
Online form – a PCP
AECOM Ltd required job applicants to submit an online form which included creating a personal profile and password. This essentially meant creating a profile by submitting a username and password of no more than eight digits. Once this profile was created, applicants then had to input some information onto the online application form. The ET had found that these requirements amounted to PCPs (provision, criterion or practice).
Mr Mallon wrote to AECOM Ltd at the time of his application explaining that he had dyspraxia and asking that he be allowed to send a CV and complete the application process orally over the telephone. He also attached details of his dyspraxia to explain how the condition impacts people in a general sense.
Second request for oral application
The HR manager at AECOM Ltd responded to this request stating that Mr Mallon would need to complete the online application form and create a profile but asked him to get in contact if there were specific aspects he was struggling with. Mr Mallon did not respond to this with any further explanation and reiterated his request to supply his CV and make an oral application over the phone. This ultimately led to him presenting claims to the employment tribunal for a failure to make reasonable adjustments.
Been a previous employee
An interesting aspect of this case is that Mr Mallon had been a previous employee of AECOM Ltd and he had failed his probation for performance reasons with the company some eight months before the new application. He had also presented a claim in respect of that previous post which the company had settled on no admission of liability. Mr Mallon was not precluded from applying to the company for different roles and argued that the new post would have given him a fresh start at the company.
AECOM Ltd appealed to the EAT on various grounds including arguing that they did not know how Mr Mallon was at a substantial disadvantage, given he had not explained this despite HR having asked him for clarification on which aspects of the application he had trouble with. The company also argued that the ET had erred in its finding that Mr Mallon was a ‘genuine applicant’ because the undisputed evidence suggested that Mr Mallon had essentially applied to do the same job in the same team as he had done before. Indeed, his application would have been considered by his previous manager, acting as the hiring manager for the role, who had dismissed him during his probation period. It was therefore perverse for the ET to consider this would not have had an impact on the decision-making process over whether he was a genuine applicant and the tribunal’s decision had been ‘perverse’.
AECOM Ltd succeeded on that latter ground and the case has been remitted back to the employment tribunal for reconsideration on that issue.
Advice for schools
The case highlights the importance of employers making reasonable adjustments for candidates with disabilities during the recruitment process. A key point of this case was seen to be the failure of the company to contact the applicant by telephone and ask what support he may need as part of the application process.
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