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Legal Corner:Disabled individual argues he cannot submit online job application

9th Apr 2021
Legal Corner:Disabled individual argues he cannot submit online job application

s perhaps one of the more complex aspects of equality law. As well as the prohibitions on less favourable treatment and harassment, which apply to all the protected characteristics, there are obligations on an employer to make reasonable adjustments for disabled employees (and potential employees) where their disability might put them at a substantial disadvantage in comparison to others. This rule encompasses what are known as provisions, criterions or practices, as well as physical features, and the need for auxiliary aids.

The focus of an assessment is on what, reasonably, can be done to support a disabled individual; there are times when an ideal scenario might not meet the test of reasonableness.

Mr Mallon, whose claim against Aecom Ltd was heard this month, suffered from Dyspraxia. He wanted to apply for a position at Aecom Ltd, but they required an application to be submitted online. Mr Mallon considered that he could not make an online application due to his disability, and so wished to make an oral application only.

When he was not afforded that opportunity, he brought a claim for discrimination on the grounds of his disability. Aecom Ltd made an application for Mr Mallon’s claim to be struck out, on the basis that it had no reasonable prospects of success. They raised a number of arguments, which I will return to – but the application succeeded, and Mr Mallon therefore appealed to the Employment Appeal Tribunal. The appeal tribunal permitted the appeal – and it is their analysis that is particularly interesting, and which will be considered further.

One of the arguments made by Aecom Ltd was that Mr Mallon could, had he struggled to complete an online application, sought the assistance of a family member or friend, to assist. Factually, Mr Mallon said that he did not want to ask his wife for help as she was ‘not his carer’; he was embarrassed to ask his friends as they did not know that he suffered from dyspraxia.

The appeal tribunal noted that where an employer would otherwise be under a duty to make adjustments, the fact that someone else might be able to assist an individual to overcome the disadvantage does not mean that the employer can absolve themselves of their responsibility. In addition, if filling in an online application would take Mr Mallon significantly longer than other applicants, even if there was significant time available before the deadline for him to complete the form, this did not mean that he was not put at a significant disadvantage.

This would be a question of fact, based on the evidence, that had not been determined in this case.When assessing Mr Mallon’s claim, the appeal tribunal noted that in addition to the argument that an online application was a ‘provision, criterion or practice’ that put him at a substantial disadvantage, which is what he had suggested, it was also arguable that what Mr Mallon needed was an auxiliary aid, in the form of a person, provided by the employer, to complete the application on his behalf, having spoken to him.

This issue had not been considered by the employment tribunal, as it had not been raised by either party.

Whilst it was clearly not appropriate to conclude that Mr Mallon’s case did not have any reasonable prospect of success, and therefore the case was remitted to the tribunal to be heard afresh, the issues that it raises are relevant to both employers and employees. For employees with disabilities, it is important to assess the extent to which disadvantages might be faced; whilst an employee is not obliged to suggest an adjustment that might assist them, if they can think of one, and suggest it to their employer, from a practical perspective it might make the process of obtaining the adjustments that much easier.

For employers, it is important to consider the extent to which usual practices or requirements might adversely impact on those with a disability, and what adjustments can reasonably be made to overcome that disadvantage. As Mr Mallon’s case demonstrates, assessing the application process is just as important as the employment itself.

Safia Tharoo
Barrister, 40 Bedford Row, London

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