Facts
- Mr M (“M”), has dyspraxia – a condition which affects movement and coordination, but can also affect organisation and planning and speech and language, although each person’s experience is different.
- Between 10 April and 18 December 2017 M was employed by AECOM Ltd (“AECOM”) in its Birmingham office. After an extended probationary period, M was dismissed for unsatisfactory performance. M brought a disability claim, which was settled without admission of liability.
- In August 2018, M wanted to apply for a new role within AECOM’s Research and Development team in London (“2018 role”). To apply, candidates were required to complete a relatively short online application form and create an online personal profile. M emailed the HR department, attaching his CV, including information that he had dyspraxia, and requesting that his application be heard orally given his disability. He said he would supply his telephone number if AECOM emailed him.
- AECOM’s HR stated that the application process required him to complete the online application form, but if he had concerns about filling out the form, he should let them know and asked which parts of the form M was finding difficult to complete. M did not answer that question but stated he could do the online form over the phone and would like to make an oral application. Correspondence continued, but neither party called the other at any stage.
- M was, therefore, unable to make an application and so brought a disability discrimination claim on the basis that AECOM had failed to make reasonable adjustments.
The law
Under the Equality Act 2010, a duty is imposed on employers to make reasonable adjustments at work to ensure that disabled job applicants are not significantly disadvantaged in comparison to other applicants. This includes where a provision, criterion or practice (PCP) applied by an employer puts a disabled person at a substantial disadvantage in comparison with a person who is not disabled, in which circumstances the employer must take reasonable steps to avoid that disadvantage.
However, an employer is not required to make reasonable adjustments if it does not know or could not reasonably be expected to know both that an interested disabled person has a disability and that they are likely to be placed at a substantial disadvantage because of their disability.
The case
At first instance, the tribunal found that AECOM had failed in its duty to make reasonable adjustments. AECOM had applied a PCP, namely, the expectation that an applicant had to: 1) create an online account to access the form; and 2) complete the online application form. The PCP put M at a substantial disadvantage because M was too anxious because of his dyspraxia to complete the online process.
AECOM appealed but the EAT upheld the Tribunal’s decision. Although the Tribunal had asked itself the wrong questions its answered the right ones. It was clear that AECOM knew that M would have difficulty filling in the online form but did not know the specific problem in doing so. However, AECOM ought to have known that if it wanted further clarification, it should have phoned M given his difficulties with written communication. A reasonable employer, when faced with an individual with a dyspraxia diagnosis who had asked for an adjustment to avoid filling in an online form and who had failed to respond in writing to a reasonable question, would have made the necessary reasonable enquiries and phoned them to understand more.
A point to note is that the case is remitted back to the Tribunal to consider whether M was a genuine applicant for the 2018 role given the particular facts of this case.
Key takeaways
This decision serves as an important reminder to employers, that their duty to make reasonable adjustments also applies to job applicants. If an employer is notified that a job applicant has a disability, they should make reasonable enquiries into the nature of their disability and therefore any difficulties they are having with the application process, so that they can make reasonable adjustments. It seems obvious when looking at the facts of this case, but employers may need to go further than simply enquiring over email and instead pick up the phone and call the applicant directly. Furthermore, recruitment processes should not be rigid and should retain flexibility to accommodate the needs of applicants.
