In many disability discrimination cases it is important for an Employment Tribunal to consider what an employer knew and when. This is because an employer cannot be liable for direct discrimination or failure to make reasonable adjustments if it did not have knowledge of the disability and/or the particular disadvantage suffered.
There are two ways that an employer can have knowledge for this purpose – either ‘actual knowledge’ or ‘constructive knowledge’. Constructive knowledge is where the employer hasn’t been specifically told, but they “ought reasonably to know” about the disability or particular disadvantage in the circumstances. As a recent case (AECOM v Mallon) showed, this can cover a situation where an employer fails to ask follow up questions of the individual.
Background
Mr Mallon wanted to apply for a job at AECOM at its London office. He had previously worked at the Birmingham office but had been dismissed in 2017 after an extended probationary period. After his dismissal he had brought a disability discrimination claim (his disability was dyspraxia), and a settlement had been reached between him and the company. It had been agreed between the parties that the settlement would not prevent Mr Mallon from applying for a job with the company in future.
For anyone who wished to apply for the London role, the company had an online application process. As part of this, candidates had to create a personal profile, which required them to input their email address, create a username and provide a password consisting of eight digits and a special character.
Mr Mallon did not complete the online application process. Instead, he sent emails to the company’s HR team in which he said he wished to apply for the role. He attached his CV (which included mention of dyspraxia) and said that he wanted to do an oral application by phone to talk about his experience. He said that he wanted to arrange this by email and offered to provide his phone number.
The company’s HR manager corresponded with Mr Mallon to explain that the online process was a requirement but asked him to let her know if there were parts of the form he was struggling with. Mr Mallon’s disability meant he was not able to create the username and password, but he did not make the HR manager aware of this. She did not ask the Claimant for his phone number, so they did not speak on the phone.
Mr Mallon was not successful in obtaining the role and brought a claim for disability discrimination. (During the Tribunal process it was also revealed that he had brought a total of approximately 60 Employment Tribunal claims against various employers relating to online application forms).
The decision
The Employment Tribunal found in Mr Mallon’s favour, i.e. that by not calling him, AECOM had failed in its duty to make reasonable adjustments for his dyspraxia. The company appealed against this decision to the Employment Appeal Tribunal (EAT).
There were two main grounds put forward for the appeal. The first was that Mr Mallon was not a genuine applicant for the role, because it was a role that he had been dismissed from not long before. The second was that the company should not have been seen as breaching the duty to make reasonable adjustments when it had asked Mr Mallon on several occasions to clarify the aspects of the online application process that he was struggling with, and he had failed to answer.
(It is worth pointing out that there was no dispute in the case that AECOM had actual knowledge of Mr Mallon’s disability (dyspraxia) from his previous employment and from the fact that he had mentioned it in his email correspondence. However, the second issue in dispute related to whether the company had had constructive knowledge of the particular disadvantage he suffered in relation to the completion of the online form.)
The Employment Appeal Tribunal agreed that the Tribunal’s reasoning on the first point was incorrect, and sent the case back to the original Tribunal to reconsider. However, in relation to the second point, the EAT rejected the appeal. This was because the EAT felt that AECOM should have telephoned the Claimant as he had requested.
“… it is hard to see how the Tribunal could reasonably have reached any other conclusion than that the respondent ought to have telephoned the Claimant both to ascertain what the nature and extent of his claimed disadvantage was, and in order to make the reasonable adjustment.”
Lessons for employers
Having read the background to the case it is hard not to have sympathy for the employer in this situation, particularly when they were up against someone who has brought so many claims. Although fortunately serial litigants like Mr Mallon are in the minority, the case does still contain an important learning point for employers, which is that if an applicant informs you that they have a disability and that this is causing them to struggle with some aspect of your recruitment process, you need to follow that up with them proactively to find out more about their particular disadvantage, otherwise you run the risk of a disability discrimination claim. This case is an example of how far Employment Tribunals expect employers to go in complying with the duty to make reasonable adjustments.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.