‘Heat of the moment’ resignations and dismissals
The EAT held that an Employment Tribunal erred finding that an employee’s resignation in the heat of the moment was really intended.Read more
Mr Mallon, who had a diagnosis of dyspraxia, applied for a role with AECOM in August 2018. The application process required all applicants to complete an online application form to submit their interest in the vacancies.
Instead of applying online, Mr Mallon emailed his CV to the HR department and asked to complete the process via a telephone application as opposed to the online process. He explained that he was requesting this due to his dyspraxia and provided information about how dyspraxia affects people to justify his request. The HR Manager who was dealing with the recruitment process emailed Mr Mallon explaining that the online application must be completed in order to progress his application, but that he could obtain assistance with submitting the form if he needed this. In addition, she asked him which parts of the form were causing him difficulties.
Mr. Mallon did not respond to this email as he was unable to create the online profile required to access the form. The HR manager was not aware that he was unable to create a username and password to access the online application form, and did not make further enquiries as to the difficulties that Mr Mallon was experiencing. Mr Mallon’s application was not progressed and as a result he brought a claim in the Employment Tribunal for a failure to make reasonable adjustments in respect of his disability.
Mr Mallon’s claim was successful, and the Employment Tribunal agreed with Mr Mallon’s assertion that AECOM should have allowed Mr. Mallon to make a telephone application in view of his disability.
The Tribunal found that Mr Mallon had been placed at a substantial disadvantage by the provision, criterion, or practice (PCP) of requiring applicants to create a profile and complete their application online. While the Employment Tribunal found that AECOM did not have actual knowledge of the substantial disadvantage, it did have constructive knowledge following Mr Mallon’s request to make a telephone application and the reason for this and should have telephoned Mr Mallon to obtain more details. It was not reasonable, in light of Mr Mallon’s disability and the effect this had, to correspond by email and expect him to explain his difficulties in writing.
AECOM appealed the Employment Tribunal’s decision to the EAT, which noted that it is not sufficient to show that the employer knew that the complainant was generally disadvantaged by their disability by reason of the PCP, but that it knew (or ought to have known) that the individual was likely to be placed at the substantial disadvantage in question. Whether an employer reasonably ought to have known this, requires the employer to make reasonable enquiries of the individual, and what is reasonable will be very fact specific. The EAT upheld the Employment Tribunal’s original decision. It held that AECOM ought to have been aware of Mr Mallon’s disability and that it was reasonable for AECOM to have telephoned Mr Mallon to obtain specific details of the difficulties he had. If AECOM had taken this step and made reasonable enquiries by phone, it would then have had actual knowledge of his difficulties such that it would be under a duty to make reasonable adjustments.
The topic of disability inclusion in recruitment is a common concern affecting all levels of disability in the workplace. The employment rate of disabled people is 53%, compared to 82% of non-disabled people. Clearly more needs to be done by employers to make recruitment processes more inclusive. The Government has produced some suggestions for what organisations can do to improve the process of recruiting people with disabilities. Not only does consideration of an inclusive recruitment process enable an employer to gain access to a wider talent pool, but this case highlights the potential consequences on an employer for failing in their statutory duty to make reasonable adjustments during a recruitment process.
If you would like support in improving your hiring processes, please do not hesitate to contact us.
Scroll to next section
Scroll back to the top