Reasonable adjustments: online job applications and auxiliary aids
Employment tribunals may need to consider a failure to provide auxiliary aids when considering reasonable adjustments claims connected to online applications. (Mallon v Aecom Ltd).
Job applicant claims failure to make reasonable adjustments
Mr Mallon claimed for a failure to make reasonable adjustments arising from an online application process. Mr Mallon has dyspraxia. He alleged that completing an online application put him at a substantial disadvantage compared to non-disabled applicants. He asked Aecom if he could make his job application orally. Aecom refused.
Mr Mallon claimed Aecom had failed to make reasonable adjustments for his disability.
Tribunal strikes out the claim
The employment tribunal struck out the claim at a preliminary hearing. It ruled Mr Mallon would not be able to demonstrate substantial disadvantage arising from Aecom’s practice of requiring an online application, so his claim had no reasonable prospect of success.
Mr Mallon appealed the ruling.
Tribunal should have considered auxiliary aids
The Employment Appeal Tribunal overturned the decision.
It noted that the tribunal had failed to consider if this was a case concerning a failure to provide auxiliary aids. The Employment Appeal Tribunal ruled Mr Mallon (who was unrepresented) could have been arguing that he needed an auxiliary service to assist him when completing the online application form and that Aecom’s failure to provide this was a breach of the duty to make reasonable adjustments.
The Employment Appeal Tribunal also noted that strike out must only be used "in the most obvious and plain cases" and rarely in discrimination claims. It considered the employment tribunal had been wrong to conclude Mr Mallon’s claim had no reasonable prospect of success.
The Employment Appeal Tribunal therefore upheld the appeal and remitted the case to a new tribunal.
The ruling is a reminder that reasonable adjustment claims may sometimes need to consider more than whether a PCP (provision, criterion or practice) puts a disabled person at a substantial disadvantage and the adjustments that could have been made to alleviate the disadvantage. Although this is by far the most common type of claim, reasonable adjustment claims can also be based on a failure to provide auxiliary aids and/or the need to make adjustments to physical features of an employer’s premise.
The Equality and Human Right Commission Code of Practice indicates that an auxiliary aid can include the provision of a specialist piece of equipment, such as an adapted keyboard or text to speech software. It can also include providing an auxiliary service, such as a sign language interpreter or a support worker for a disabled worker.
The ruling also emphasises the high hurdle for striking out discrimination claims.
The case is a useful reminder that job applicants are protected against discrimination by the Equality Act 2010. Therefore, duties to make reasonable adjustments may arise at the application stage. Employers should ask candidates if they need any adjustments to the application process due to disability and consider any requests carefully.
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