Adjusting your recruitment process for a candidate with a disability: What is reasonable?

The Employment Appeal Tribunal (EAT) has held that a failure to make enquiries into a job applicant's disability amounted to a failure to make reasonable adjustments.

Background

In 2018, AECOM Ltd advertised for a role in its research and development department. Mr Mallon, who has dyspraxia, applied. Applicants were required to complete an online application form. To access the form, applicants had to provide a password consisting of eight digits, including a special character.

Mr Mallon emailed the company's HR department expressing his wish to apply for the role and providing information about his dyspraxia and how the condition affects people generally. He asked whether he could make his application orally by telephone because of his disability. AECOM Ltd refused the request and told him told that he had to complete the online form. He was advised to inform the HR team if he was struggling with any aspect of the form. 

Mr Mallon did not inform the HR team about how his disability caused him difficulties in creating a password to access the form. He says this was for "fear of being laughed at in light of a previous experience with another employer". Ultimately, his application was unsuccessful.

What was the legal basis of the claim?

Mr Mallon brought a claim for disability discrimination against AECOM Ltd for a failure to make reasonable adjustments. By way of reminder, the Equality Act 2010 provides that an employer has a duty to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage compared to a non-disabled person. Failing to make such reasonable adjustments constitutes disability discrimination. Mr Mallon was arguing that the PCP, in this case, was the requirement to complete the online application form. 

Decision

The broad points made by the EAT were these:

• A duty to make reasonable adjustments does not arise if the employer does not know - and could not reasonably be expected to know - that the claimant has a disability and that they are likely to be placed at the substantial disadvantage. 
• However, an employer cannot "turn a blind eye" and, in line with the EHRC Employment Statutory Code of Practice, should do all they can reasonably be expected to do to find out whether an applicant has a disability and is, or is likely to be placed, at a substantial disadvantage. What is reasonable will depend on the circumstances.
• AECOM Ltd had constructive (in other words, implied) knowledge of the disability and the disadvantage faced by Mr Mallon. It knew he was dyspraxic and, had the HR team made reasonable enquiries – e.g. by telephoning Mr Mallon - it would have had the requisite knowledge of his particular difficulties with the online application. 
• Consequently, the duty to make reasonable adjustments, for example sending the form to Mr Mallon or creating a password for him and emailing it to him, came into play.

Takeaways

This decision highlights the importance of making adequate enquiries to find out (i) if a job applicant is, or could be, disabled; and (ii) if they are or could be disabled, what actions may be required to eliminate a substantial disadvantage to that applicant. This will be especially important in situations where the applicant indicates that they would encounter difficulties with the application process but have not provided specific details. 

Obtaining this information helps the employer to assess its obligations, both legal and practical.  

There is, of course, a balance to be struck between respecting a person's privacy about sensitive personal information on the one hand, and making adequate enquiries to assess which reasonable steps need to be taken to avoid the disadvantage posed by the recruitment process. Communicating effectively and sensitively during the recruitment process will always be crucial. 

In the ongoing "war for talent", attracting the best candidates will be front and centre of business aims. This, in itself, will involve removing difficulties for those who might be dissuaded from applying or find it more difficult to comply with the process, and such an approach reduces the risk of costly, time-consuming and reputationally damaging discrimination claims.

AECOM Ltd v Mallon [2023] EAT 104

If you or your organisation require assistance on this area, please get in touch with Charlotte Reid or Kelly Thomson.