To what extent are employers required to enquire about a job applicant's disability?
- AuthorMartin Cornforth
In AECOM Ltd v Mallon, the Employment Appeal Tribunal ("EAT") has upheld an Employment Tribunal's decision that an employer should have made reasonable enquiries regarding an employee's request for an oral rather than a written application due to difficulties arising from his Dyspraxia.
The applicant had asked if he could make an oral application because of difficulties he faced in creating a personal profile with a username and password, and then completing an online application. These difficulties arose from the Claimant's disability, Dyspraxia. Where a disability places an applicant at a substantial disadvantage, employers are obliged to make reasonable adjustments to avoid that disadvantage. However, the duty to make a reasonable adjustment does not arise if the employer did not know, or could not reasonably have known, that the employee suffered the disadvantage in question.
The employee had been in contact with the employer by email. The employer responded and asked what particular difficulties he was facing with the online form. The employee did not reply addressing these queries. The employer accepted at the hearing that it could have phoned the employee and had his number. The Tribunal found that had they phoned the employee he would have explained the difficulties he faced. The Tribunal found that it would have been reasonable to seek this information by phone and that it was unreasonable to expect him to provide this information by email, given his difficulties with written communication. As such, the Tribunal found that the employer ought to have known that the employee's disability placed him at a substantial disadvantage.
The employer criticised the Tribunal's decision, arguing that it was reasonable to have expected the employee to respond by email. However, the EAT found that the decision was open to the Tribunal based on the evidence before it.