Employers have a statutory duty under the Equality Act 2010 (EqA 2010) to safeguard against discrimination on grounds of disability. This duty applies to both existing employees and job applicants. This article aims to act as a refresher on reasonable adjustments for job applicants in the light of the recent Employment Appeal Tribunal (EAT) decision in Mallon v AECOM Ltd UKEAT/0175/20/LA.
Section 20 and Schedule 8 EqA 2010 impose a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances.
This duty will arise if a disabled person is placed at a significant disadvantage by:
The Equality and Human Rights Commission Employment Statutory Code of Practice (the EHRC Code), which Tribunals must take into account if it appears relevant, contains a non-exhaustive list of potential adjustments that employers might be required to make.
Employers should ask all job applicants if they need reasonable adjustments for any part of the recruitment process. For clarity, the recruitment process includes advertising the position right through to selection and job offers.
The employer must consider making reasonable adjustments for the recruitment process if the:
Examples of reasonable adjustments during the recruitment process include:
However, there are limits as to what will be deemed reasonable during the recruitment process, although this will be fact specific. For example, withdrawing a job offer may be justified where the cost of the reasonable adjustments would be exceptionally high and prohibitive.
Ultimately, it is for an Employment Tribunal (ET) to objectively determine whether a particular adjustment would have been reasonable in the circumstances.
Factors that could be taken into account when deciding if an adjustment is reasonable include:
The Claimant, who has dyspraxia, brought a claim of disability discrimination against the Respondent for failure to make reasonable adjustments to its job application process. He contended that the Respondent applied a PCP by requiring submission of an online application form, which put him at a substantial disadvantage in comparison with a person who is not disabled.
The Respondent sought a strike out or deposit order. The claim was indeed struck out on the basis that the Claimant would not be able to establish that the application of the PCP placed him at a substantial disadvantage (i.e. more than minor or trivial) in comparison with people who are not disabled.
The Claimant appealed.
The EAT held that the ET had erred in striking out the claim. The EAT noted the importance of considering, in reasonable adjustment claims, the possibility that the case is about physical features (including furniture) or auxiliary aids (including services). No consideration was given to whether this case should be analysed as an auxiliary service claim.
The EAT also commented that, on the material that was before the ET and the ET’s analysis of the arguments advanced before them, it could not properly be said that the claim had no reasonable prospect of success. Accordingly, the EAT upheld the Claimant’s appeal and remitted the case to a freshly constituted ET.
In this case, the EAT was critical of the decision to strike out which must only be used “in the most obvious and plain cases” and rarely with discrimination. The Claimant had brought over 30 similar claims, 29 of which he had withdrawn and three of which he had lost (one with costs). It is suspected that this heavily influenced the ET Judge confronted with a strike out application. Nevertheless, this case should act as a timely reminder for employers of their duties from the outset of the recruitment process, particularly as workforces have been more mobile than ever, since the impact of Covid-19.
If you haven’t already, it may be worthwhile considering using standard forms to document the consultation and decision-making process relating to any adjustments. If using a recruitment agency, ensure that the agency is aware of its duty to make reasonable adjustments.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.