The duty on employers to make reasonable adjustments for disabled individuals starts at the recruitment stage (s39(5) Equality Act 2010). The range of potential adjustments is extensive (subject to their reasonableness of course); it can include physical adjustments to the interview room/building or additional assistance with any recruitment testing or changes to the start of the process with the submitting of an application form. It is at this preliminary stage that AECOM Ltd fell down according to a recent EAT judgment in the case of AECOM Ltd v Mallon.

Case highlights

The EAT held that an employer should have telephoned a disabled applicant to discuss their job application when it knew that the applicant's dyspraxia affected their ability to complete an online application process.

Case details

This case is a little like an onion; there are a lot more layers than you think at first viewing! That said, despite a robust defence from AEOCM Ltd, the EAT refused to let the multiple layers cloud its judgment. AEOCM Ltd should have telephoned Mr Mallon, that would have been a reasonable adjustment.  

• Layer 1 - Mr Mallon applied for a role with AECOM. Their standard application process required applicants to complete the application form online. To do this applicants needed to create a personal profile with username and password. Instead of following this process, Mr Mallon emailed his CV to the HR department and asked that he complete an oral application because of his disability. He included details of his dyspraxia with the request. AECOM's HR team emailed him and offered him assistance with completing the form and Mr Mallon engaged in this email conversation. But no one picked up the phone to have a conversation with him. Mr Mallon was unable to complete his application for the role and brought a claim for AECOM's failure to make reasonable adjustments.
• Layer 2 - Mr Mallon had been employed by AECOM six months prior to his application. He had been dismissed having failed to complete his extended probationary period satisfactorily. The new role he had applied for was a similar role and in the same team as the one he had held six months previously. The manager who had deemed that his probationary period was unsatisfactory was the same manager who was hiring for this new role. For this reason, AECOM saw the application as disingenuous.
• Layer 3 - This claim was one of about 60 claims that Mr Mallon had made against recruiters or potential employers, all relating to their recruitment processes. Vexatious applicant or fighter for disability rights? It depends on your viewpoint.

Learning points

• Be wary of rigid recruitment procedures; ensure your HR team is willing to address concerns raised and look to creative solutions. The extent of the creativity might just be picking up a phone as it was with Mr Mallon's case - we are less used to doing this in an email culture, but it can be a key component in the process.
• Add a large dose of common sense - if an applicant who struggles with online written applications is not responding to emails, it is a fair indication that they may find the written word tricky and prefer verbal communication.
• Disabilities will present in numerous ways. Do not make assumptions about what an applicant can or cannot do without their input. Ensure that your application forms contain an open question as to what reasonable adjustments are required to give the applicant an opportunity to provide specific information.
• I would think we all have some sympathy with AECOM in this scenario; they were trying to deal with someone who they suspected was making a disingenuous application and setting them up to fail. That said, it is important that all applicants are treated fairly, and it is a risky business to start treating applicants with an active litigious history differently. It could prompt victimisation claims in addition to any failure to make reasonable adjustments which could add a hefty sum to any potential injury to feelings award. We would advise that there are reporting systems for applicants who are suspected of being duplicitous so that the risk can be addressed and minimised wherever possible.

If you have any further questions about this case or would like advice on your recruitment practices or any other issue please do contact a member of our team.