Thu 14 Sep 2023

4 years, 3 job applications, £2k in compensation and 1 phone call

A tale of not making a reasonable adjustment.

Imagine a scenario where you have previously employed an individual who you dismissed for unsatisfactory performance after an extended 8-month probationary period. The individual subsequently made a claim for disability discrimination which your organisation chose to settle rather than defend through to a tribunal hearing.  As part of that settlement your organisation gave a specific assurance that there would be no restriction on the individual applying for future roles in the organisation. 

Now imagine that the individual, approximately 8 months after his dismissal for unsatisfactory performance makes a second application to work for you in a similar role to the one he was dismissed from.  The standard application process involves completing a relatively short online application form that requires candidates to input their email address and create a password.  The individual, who has dyspraxia, sends you his CV which includes information about how dyspraxia affects people generally, and requests an oral application instead of the online application form.  You email back explaining the online application form is required, asking which parts of the form were problematic and explaining assistance can be provided.  You are aware from the individual's previous employment with your organisation that he has successfully completed online forms in the past.  Despite a number of requests for clarity, the individual does not explain which parts of the form he struggles with, he simply continues to state he would prefer to complete the online form verbally - but he did not at any time pick up the phone to call you.  After a lengthy email dialogue, the individual does not pursue the application and instead makes a complaint to the employment tribunal arguing your organisation has failed to make reasonable adjustments. 

Who is at fault here?  Can you rely on your previous knowledge of the individual's abilities - in particular that he has previously completed an online form?  Are you in a position to defend this claim?

For the parties in AECOM v Mallon this is not an imaginary scenario, but a real tribunal claim that was originally brought before an employment tribunal in 2019 at which point it was stuck out as having no reasonable prospect of success.  However, when the claimant appealed the Employment Appeal Tribunal ("EAT") overturned that decision in 2021.  When the merits of the case were then heard in the employment tribunal in 2022 the claimant was successful.  The tribunal found that AECOM knew the claimant had dyspraxia and that as a result he had difficulty in filling in the online form.  Although the claimant had not responded to AECOM's questions about his difficulties when completing the online form, if AECOM needed more detail HR could have phoned and asked.  The fact that the claimant could have got assistance from his wife to complete the form did not relieve AECOM from the duty to make reasonable adjustments.  The claimant was awarded £2,000 in respect of injury to feelings plus £700 in interest. 

When AECOM appealed to the EAT their appeal was partially successful, but only insofar as the tribunal's finding that the role being applied for was potentially a fresh start for the claimant was contrary to the undisputed evidence.  In fact, the claimant had been applying to return to a similar job in the same team he used to work for and the applications would be judged by the line manager who had dismissed him for unsatisfactory performance only 8 months earlier.  The EAT considered that this error significantly impacted on the employment tribunal's conclusion that the claimant was a genuine applicant for the role, so this point was remitted back to the tribunal for reconsideration. 

However, when it came to the merits of the claim, the EAT were of the view that the requirement to complete the application online put the claimant at a substantial disadvantage and consequently there was a duty to make reasonable adjustments.  AECOM should have considered whether someone with dyspraxia might struggle to explain himself via email, and it would have been a reasonable adjustment to phone him. 

Given the background to this case it may be easy to feel some sympathy for AECOM.  They are currently 4 years into this litigation, with another employment tribunal hearing still to go, they ended up dealing with 3 job applications from the claimant (he made a third one in 2019), an award of £2,000 plus interest was made against them and it all comes down to not having made 1 phone call.

This case highlights the importance of not making assumptions about what you think you know, unless there is clear evidence to support it.  The HR manager here knew the claimant had previously made an online application for his earlier role, but she did not know that on that occasion he had assistance from his partner in completing the form.  The case also highlights that, where an employee or potential employee has indicated that they may be at a disadvantage, the onus is on the employer to make further enquiries so they can identify whether reasonable adjustments are required. 

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