The law states that employers do not have to make a reasonable adjustment if they do not know that the person had a disability. In AECOM Ltd v Mallon, the EAT held that the company had constructive knowledge of Mr Mallon’s disability as they could have found out by telephoning him to ask him what problems he was having filling in the online application form.
Basic facts
Mr Mallon, who has a developmental co-ordination disorder called dyspraxia, wanted to apply for a job in August 2018 with AECOM Ltd. He had previously been employed by the company between April and December 2017 but had been dismissed during his probation period.
As part of the standard application process, he had to complete a relatively short online form which involved setting up a personal profile by providing a username and password. In a series of emails with the HR department, Mr Mallon explained that he had dyspraxia and wanted to make an oral application over the phone. He also sent information explaining how dyspraxia affects sufferers.
The HR manager, however, insisted that he had to complete the online form but that if he had any problems, he should let her know. He did not do so, but nor did he explain that he could not create a username and password in order to access the form. Although the manager had his telephone number, she did not call him.
Mr Mallon then lodged a tribunal claim arguing that the company had failed to make reasonable adjustments under section 20 of the Equality Act 2010. His claim was struck out by the tribunal as having no reasonable prospect of success. However, the EAT allowed his appeal and remitted the matter to a new tribunal for reconsideration (see ELR 719).
Relevant law
Under section 20, the duty to make reasonable adjustments is triggered if the employer is found to operate a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage with someone who is not disabled.
However, the duty does not apply if the employer did not know, and could not reasonably be expected to know, that the individual in question had a disability.
Tribunal decision
Upholding the claim, the tribunal found that the company had applied a PCP under which candidates were expected to (1) create an account by providing a username and password in order to access the online form; and (2) answer the questions on the form in the spaces provided.
Although the company only knew that Mr Mallon was having difficulty filling in the form (as that was all he had told them) as opposed to accessing it, the tribunal said someone should have telephoned him to get a better idea of the problems he was having. As such, the company had “constructive knowledge” of his disability.
The company appealed, arguing that Mr Mallon was not a genuine applicant as he had recently been dismissed from a similar role in the same team under the same line manager who was responsible for hiring for the new role; and that he had not explained what difficulties he was having when he was trying to complete the online form.
EAT decision
Dismissing the second part of the appeal, the EAT held that the company would have known about the difficulties Mr Mallon was having if they had just telephoned and asked him. It, therefore, had constructive knowledge of his disability.
However, it agreed that the tribunal had made an error when it found that the new role was in a different team to the one he had worked in previously. The EAT, therefore, remitted that point to the same tribunal for reconsideration.
