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Job applications and disability discrimination

15th August 2023
A recent case illustrates that employers need to consider adjusting recruitment procedures to assist disabled job applicants.

While most employers are aware of the requirement to make adjustments to the workplace and practices to assist disabled staff, and that they should not discriminate over the appointment of new staff, the fact that they are legally required to make reasonable adjustments to recruitment practices and policies in order to assist access by disabled job applicants is less understood. A recently reported case in the Employment Appeal Tribunal highlights this issue and illustrates some issues that employers should consider in their recruitment procedures.

The case of AECOM v Mallon concerned a job applicant that had dyspraxia. The business used an online application form for the post to which the individual applied. The process required the individual to create a personal profile including the creation of a user- name and password before the individual could access the application form. The individual contacted the employer and asked if they could submit an oral application for the role because of the effects of his disability and provided the employer with some information on dyspraxia and the effects of that condition. The employer’s HR department asked the individual which part of the form caused him trouble and informed him that he could receive assistance, but that the completion of the form was required. However, despite a lack of response to the HR department’s questions, they did not telephone the applicant to discuss the situation and application process. The applicant was not appointed to the role, and subsequently brought a claim of disability discrimination in the Employment Tribunal.     

The Employment Tribunal concluded that a reasonable employer, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form but failing to respond in writing to a reasonable question, would have telephoned that individual to ask for more details about his difficulties. The Employment Tribunal gave the opinion that, given the applicant’s difficulties with written communication, it was not reasonable to expect him to explain these matters in an email. Given the applicant’s problems with written communication, his failure to explain his difficulties by email was reasonable.

In giving its decision, the Employment Appeal Tribunal noted that an employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, both that the job applicant has a disability and that he or she is likely to be placed at the substantial disadvantage. The case law showed that what is necessary is not that the employer knows that the job applicant is generally disadvantaged by their disability by reason of the policy, condition or practice, but that it knows (actually or constructively) that they are likely to be placed at the particular disadvantage. Whether or not an employer reasonably ought to have known that the job applicant was disabled and at a substantial disadvantage requires the employer to make reasonable enquiries of that individual. What is reasonable in this context will depend on all the circumstances.  

The Employment Appeal Tribunal noted that dyspraxia constituted a disability, and that requiring an applicant that had dyspraxia to complete an online application did put that applicant at a substantial disadvantage. Consequently, the duty to make reasonable adjustments under the Equality Act 2010 was triggered.

This case illustrates the general point that employers need to be aware of the duties under the Equality Act can apply to job applicants as well as current staff. It highlights the need to be flexible and for employers to be prepared to make adjustments in their application (and indeed internal promotion) procedures. Furthermore, while it may seem somewhat, intrusive employers should be prepared to take steps and enquire if an individual may have a health condition that has an impact on their ability to fully engage in the job application process.    

At Hallett Employment Law Services we can review an employer’s policies and procedures to assist with producing and operating application policies and procedures appropriately, and ensuring that relevant policies are tailored to the needs of the particular business.           

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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