AECOM v Mallon – Disability And “Unreasonable” Adjustments?

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AECOM v Mallon – Disability And “Unreasonable” Adjustments?

Key Contact: Claire Knowles

Author: Adam McGlynn

The recent Employment Appeal Tribunal (EAT)case of AECOM Limited v Mallon demonstrates the high burden on employers to make reasonable adjustments for disabled individuals protected under the Equality Act 2010. It reminds us that this burden applies to methods of communicating with the individual and that obligations can arise with minimal information about the individual’s disability.

Mallon applied for a position with AECOM which included a standardised online application form. As someone with dyspraxia, Mallon struggled with the personal profile registration requirements of setting up a username and password. Mallon emailed AECOM to ask for a telephone application process on account of his dyspraxia but did not explain what part of the online process he struggled with. AECOM’s HR manager emailed Mallon to offer support with the online process but did not offer a telephone alternative. Mallon did not respond to the HR Manager’s emails and, as a result was unsuccessful in his application. Mallon submitted a claim that AECOM had failed to make reasonable adjustments by not offering a telephone application process.

The Tribunal upheld Mallon’s claim, agreeing that the blanket approach put Mallon and others with dyspraxia at a substantial disadvantage. Although AECOM did not have ‘actual’ knowledge of the disadvantage Mallon was facing, it nevertheless had ‘constructive’ knowledge as it ought to have known that Mallon faced a disadvantage because of his dyspraxia, and would have done if it had telephoned him as requested. The tribunal further determined that it would not have been reasonable to expect Mallon to explain himself further over email due to his difficulties with written communication. AECOM appealed to the EAT, claiming the Tribunal’s decision that they had constructive knowledge of the disability was flawed.

In order to be caught by the obligation to make reasonable adjustments under the Equality Act 2010, the employer must know, or reasonably be expected to know, both that the protected individual has a disability and that they are likely to be placed at a particular and substantial disadvantage. Case law provides that in order to know whether a protected individual has a disability that may cause them a particular and substantial disadvantage, the employer is expected to make reasonable enquiries. The EAT, therefore, found in this case that AECOM should have made reasonable enquiries into the nature of Mallon’s dyspraxia and that this should have involved a phone call as Mallon’s lack of responsiveness appeared to be due to his difficulty with written communication. Moreover, if it had made reasonable enquiries, it would have had the requisite knowledge to make reasonable adjustments, thereby being caught by the obligations of the Equality Act 2010.

This case reinforces that a cautious and pro-active approach to supporting those with disabilities is imperative, and that the steps required to comply with the Equality Act 2010 are perhaps more extensive than expected. The decision is open to critique from a number of angles including: (1) Mallon’s initial communication to AECOM was by email, suggesting that he is capable of written communication even if her has difficulty; (2) the Tribunal and EAT found that his difficulty with written communication was the only explanation for his lack of responsiveness, however, there are other reasons someone may fail to respond; and (3) although AECOM should have made reasonable enquiries and would have had knowledge of the severity of Mallon’s dyspraxia and how it affected his ability to apply for the role had they called him, the reality is that they did not call him.

The key takeaways from this case are:

  1. If suspicious of a disability, make enquiries in order to understand if, and to what extent there is an obligation to make reasonable adjustments.
  2. When making enquiries, consider whether adjustments to the method of communication are necessary.

If you would like support navigating reasonable adjustments and disabilities in the workplace, please contact our Employment team.

Check out our upcoming Acuity Law Wellbeing at Work Conference here.

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