Telephone application ruled a reasonable adjustment for job applicant with dyspraxia

An employer breached its duty to make reasonable adjustments when it insisted that a job applicant with dyspraxia complete a job application online.

The application process

Mr Mallon wished to apply for a consultant role with AECOM Ltd (“AECOM”), with the application process involving setting up an account with a username and password, and completing a relatively short form online. Mr Mallon emailed the HR department, indicating he wished to apply for the role, attached a copy of his CV (which included information about how dyspraxia affects people generally) and requested that, because of his disability, he be allowed to make an oral application by phone.

Mrs Parker, the senior HR manager, emailed him back explaining that the application had to be made online but that he could obtain assistance with completing the form if necessary. She also asked him on a number of occasions to let her know which parts of the form he was finding difficult to complete. Mr Mallon continued to state that he was happy to complete the online form over the phone and would prefer to make an oral application. He never answered Mrs Parker’s question about what aspect of the form he was struggling with and he never told her that he was unable to even create a username and password, and log onto the online form.

The employer breached duty to make reasonable adjustments

Mr Mallon was not offered the job and complained that AECOM had breached its duty to make reasonable adjustments by refusing to allow him to submit a job application orally; the Employment Tribunal upheld his claim. It found that AECOM had applied a provision, criterion or practice (PCP), that candidates were expected to create an account, by providing a username and password, in order to access the online application form and to answer the questions raised, by inserting the information and answers on the online form in the spaces provided. This PCP put Mr Mallon at a substantial disadvantage as he was too anxious because of his dyspraxia to provide a username and password to begin accessing the online form.

While AECOM did not know of that disadvantage (because Mr Mallon had not identified the specific reasons why completing an online form was a particular difficulty for him), it ought to have known of it, and should have telephoned him to ask for more details of his difficulties. Given his struggles with written communication, it was not reasonable to expect him to explain these matters in an email.

AECOM appealed to the Employment Appeal Tribunal (“EAT”) which upheld the tribunal’s decision. It found that the employment tribunal had answered the correct legal questions:

• Whether AECOM knew, or ought reasonably to have known, that the PCP was likely to place him at the particular substantial disadvantage of being too anxious to provide a username and password to begin accessing the online form; and
• Whether AECOM had made reasonable enquiries of Mr Mallon to establish his difficulties.

Therefore, its decision that AECOM had not made reasonable enquiries could only be challenged if it was perverse. The EAT considered the tribunal’s finding, that given Mr Mallon’s disability, it was not reasonable to have expected him to explain himself by email, was not perverse. The only explanation for AECOM not receiving a response to its repeated email requests for him to explain his difficulties was that he was having problems with written communication. The tribunal had been entitled to conclude that an employer acting reasonably, when faced with an individual with dyspraxia asking for an adjustment to avoid filling in an online form and who failed to respond in writing to a reasonable question, would have picked up the phone to speak to them in order to understand their situation.

As the tribunal had found that Mr Mallon would have explained his difficulties on the phone, it followed that if AECOM had made reasonable enquiries by phoning him, it would then have had the requisite knowledge of his particular difficulties with the online application process to place it under a duty to make reasonable adjustments.

What does this mean for employers?

The duty to make reasonable adjustments is only triggered if an employer knows, or ought reasonably to know, both that a job applicant/employee is disabled and that they are likely to be placed at a substantial disadvantage by a PCP applied by the employer. Employers cannot ‘turn a blind eye’ and must make reasonable enquiries to establish whether this is the case. The EHRC Employment Statutory Code of Practice states that an employer must “do all they can reasonably be expected to do” to find this out. Although the employer in this case did try to find out more details about the difficulties the job applicant had with making an online job application, it had not done enough, bearing in mind it knew he suffered from dyspraxia.

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Mallon v AECOM