The recent Employment Appeal Tribunal (EAT) decision in the case of AECOM Ltd v Mallon should serve as a warning to schools to take care with the measures they put in place to ensure job applicants with disabilities have a pathway to a fully accessible recruitment process.
What the law says on disability
An employee or job applicant with disabilities is protected from disability discrimination by the Equality Act 2010. One of the ways that the Equality Act supports individuals with disabilities is by placing a duty on employers to make reasonable adjustments.
The facts of the case
Mr Mallon’s dyspraxia entitled him to protection under the Equality Act. He was employed by AECOM Ltd in their Birmingham office for eight months. His probationary period was extended, following which he was dismissed for unsatisfactory performance. He brought a claim, which was settled without admission of liability. He went on to apply for a different job at AECOM in their London office.
The application to the London office required him to fill out an online application form. In order to access the form, candidates had to create a personal profile, which required them to input their email address as their username and to provide a password. Mr Mallon emailed AECOM’s HR department, to explain that his dyspraxia made it difficult for him to access the application form and he asked whether he could instead make an “oral application” by phone. He attached to his email his CV and provided information about how dyspraxia affects people.
The senior HR manager replied to Mr Mallon by email, explaining that the application process required him to complete the online application form, but inviting him to let her know if he had any concerns. She also asked Mr Mallon by email to let her know his specific difficulties in relation to which parts of the form he was finding difficult, and she explained that he could receive assistance to complete the form if necessary. Mr Mallon did not respond to these queries, and continued to state that he would prefer to make an oral application by phone. Mr Mallon did not phone the HR manager, due to a fear of being laughed at, and the HR manager did not phone Mr Mallon.
Mr Mallon was unable to make his application and was not offered the job.
The Tribunal’s decision
Mr Mallon brought a claim. He argued that AECOM had failed to make reasonable adjustments to its recruitment process to accommodate his disability. AECOM’s defence was that it was unable to make adjustments, as Mr Mallon had not responded to their request for confirmation as to his specific difficulties. The Tribunal found that AECOM’s blanket policy of requiring all applicants to complete the online form put Mr Mallon at a disadvantage. Mr Mallon had particular difficulties in expressing his thoughts in writing, and the Tribunal determined he was so anxious about the process of completing an online form that he felt unable to do so. The Tribunal found that AECOM ought to have known that Mr Mallon was at a substantial disadvantage and that they ought to have telephoned him to find out more about his disability and the requested adjustments. AECOM appealed this decision to the EAT.
AECOM’s appeal
The EAT agreed with Tribunal’s decision. The EAT found that AECOM were aware that Mr Mallon found written communication difficult, so it was not reasonable to require him to explain his specific difficulties via email. It was determined that AECOM should have made reasonable enquiries by telephoning Mr Mallon to discuss how they might have been able to make the application process easier for him.
What does this mean for your recruitment processes?
This is an important case as it highlights the importance of ensuring the recruitment and application process is accessible to individuals with disabilities. The duty to make reasonable adjustments applies from the start of the recruitment stage and great care should be taken to ensure that appropriate reasonable adjustments are made for any individuals who may have a disability. Where it is not clear what adjustments may be helpful, candidates should be contacted to discuss with them the impact of their disability in order to determine the relevant adjustments.
How Moore Barlow can help
You want your staff to be motivated and committed to delivering teaching of the highest quality. We can help you make sure that your employment contracts and HR policies and procedures allow you to achieve that goal. Get hold of our Independent schools team to discuss your employment, HR needs and accessible recruitment process.
