Employer should have telephoned disabled job applicant to understand difficulties with application process

In the case of AECOM Ltd v Mallon [2023] EAT 104 (10 August 2023) the Employment Appeal Tribunal has upheld a tribunal's finding that an employer was under a duty to make reasonable adjustments when its requirement for job applicants to create an online profile and complete an online application form put an applicant with dyspraxia at a substantial disadvantage.

The applicant, who had asked to make an oral application on account of his dyspraxia, failed to respond to the employer's repeated requests for him to explain his difficulties with the online process by email. The EAT considered that there could only be two explanations for that failure: either the applicant was being deliberately obstructive in order to engineer a disability discrimination claim because he was not a genuine applicant, or he was having difficulty with written communication.

Once it had decided that the applicant was genuine, the tribunal had been entitled to find that, despite his failure to respond to its enquiries, the employer ought to have known that his dyspraxia meant that he had difficulty accessing the online form. An employer acting reasonably, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form but who failed to respond in writing to a reasonable question, would have telephoned the applicant in order to understand their situation. Given the applicant's difficulty with written communication, his failure to explain his situation by email was reasonable.

The case illustrates the importance of employers having robust internal procedures for dealing with issues that might arise during recruitment exercises. These should include the employer's approach to applications by previous employees and those who have brought tribunal claims. Picking up the telephone to understand a disabled job applicant's needs might seem obvious but in this case was overlooked.