Reasonable adjustment during the recruitment process

The Employment Appeal Tribunal’s decision in AECOM v Mr C Mallon 2023 considered the obligation on an employer to make a reasonable adjustment for a job candidate.

Mr Mallon has dyspraxia and was dismissed by AECOM for unsatisfactory performance. He brought a claim for disability discrimination, which was settled and he was given assurance that he would not be prevented from applying for future roles with the same employer.

He subsequently sought to apply for a role with AECOM and the application process required him to complete an online application form and to create a personal profile (including a username and password). Mr Mallon emailed the HR Department, attaching his CV, and asked if he could make an oral application instead of an online one, due to his disability. He said he could provide a telephone number if AECOM asked him by email. The HR Manager emailed Mr Mallon, explaining that he needed to compete the online application, but that he should let them know if he was having difficulty with any of it. Mr Mallon did not at that stage explain that he could not create a username or password because of his disability. He repeated that he could do the form over the phone, but did not himself telephone AECOM. He said that this was for fear of being laughed at because of an experience with another employer. The HR Manager did not call Mr Mallon. He did not make an online application and raised a claim for a failure to make a reasonable adjustment to the application process.AECOM argued that Mr Mallon was not genuinely applying for the role and was instead seeking to engineer a discrimination claim. The Employment Tribunal dismissed this argument on the basis that Mr Mallon was applying to a different office in a different team and that this was a “fresh start” for him. They found that AECOM failed to make a reasonable adjustment and that it should have known that the application process placed Mr Mallon at a substantial disadvantage because it could have telephoned him to find out what his issues were.

The EAT

• Upheld AECOM’s appeal against the Tribunal’s decision that Mr Mallon was genuinely applying for a role. The EAT found that the Tribunal had mistakenly concluded that he was applying for a job in a different location with a different team, which was contrary to the evidence. In fact, he was applying to return to a similar job in the same team, managed by the same line manager who had previously dismissed him. Had the Tribunal understood this, they may have decided differently on this point and this matter would therefore be remitted back to the Tribunal for them to consider their decision in light of the correct evidence.
• Upheld Mr Mallon’s complaint that there was a failure to make a reasonable adjustment. An employer is not under a duty to make a reasonable adjustment where it does not know, and could not reasonably be expected to know that:
  • The individual is a job applicant
  • Has a disability
  • Is likely to be placed at the substantial disadvantage at which they were placed.

• AECOM’s argument was that it did not know and could not reasonably have known that Mr Mallon could not create a username and password because of his disability. The EAT agreed with the Tribunal’s decision that acting reasonably, AECOM would have telephoned Mr Mallon to understand what his difficulties were with the process and, having failed to do so, it could not argue that it could not reasonably have known of those difficulties.

This case is a useful reminder of an employer’s obligations towards disabled employees during the recruitment process.

See the case of AECOM v Mr C Mallon here.