The Employment Appeal Tribunal case of AECOM Limited v Mallon highlights the need for an employer to undertake reasonable inquiries about the job applicant’s disability, and its impact on the application procedure.
The job applicant - Mr Mallon, has Dyspraxia. He applied for a consultant’s job with AECOM Limited. HR selected an application process that required all applicants to complete an online application form. Mr Mallon sent AECOM Limited his CV and requested that he make his application orally as an alternative to using the online application form. He explained this request was due to his disability.
AECOM Limited HR manager emailed him and told him he must complete the online form, and offered him help with the submission of the form. She requested he explain which part of the application form he found difficult. Mr Mallon did not disclose that he was unable to create the username and password required to access the application form. Both parties also did not contact each other by phone to further discuss his request.
Mr Mallon failed in his application and filed an Employment Tribunal claim under the Equality Act 2010 on the basis that reasonable adjustments were not provided by AECOM Limited.
Representing himself, Mr Mallon argued that - under the Equality Act 2010, he suffered a substantial disadvantage due to a provision, criterion, or practice (PCP) of the employer. The Employment Tribunal held a preliminary hearing and struck out his claim due to it having no prospects.
Mr Mallon appealed to the Employment Appeal Tribunal. It held that the Employment Tribunal had behaved incorrectly by striking out his claim based on no reasonable chance of success. The Employment Appeal Tribunal expressed concern that - on using the strikeout in a discrimination case, the Employment Tribunal had failed to correctly assess their online form to a provision, criterion, or practice. The employer’s duty is considered if a provision, criterion, or practice placed the applicant at a substantial disadvantage. Where it is reasonable to do so, to remove that advantage. This placed the bar for striking out a discrimination claim very high.
Employers should learn valuable lessons from this case.
The employer’s duty is to remove any significant disadvantage suffered by disabled employees and applicants in relation to the employer’s provision, criterion, or practice. This duty will also apply to eliminating disadvantages due to the physical characteristics of the employer’s property as well as the lack of supplemental aid.
Employers can avoid discriminatory practices by ensuring employees receive regular training on discrimination concerns. Quest can help your staff with training and HR support. Remember job applicants are also protected by the Equality Act 2010 and it is your duty to ensure you carefully consider reasonable adjustments requested by an applicant.
This article is only for guidance, and - should you have a particular legal problem with an employee, please contact the Quest Advice Line on 01455 852 028.
