Section 20 of the Equality Act places employers under a duty to make reasonable adjustments for disabled workers where they are placed at a substantial disadvantage. In Mallon v Aecom Ltd, the Employment Appeal Tribunal (EAT) held that the tribunal was wrong to strike out a claim of disability discrimination for failure to make reasonable adjustments and had overlooked the duty to consider the use of an auxiliary aid.
Basic facts
Mr Mallon, who has a developmental co-ordination disorder known as dyspraxia, decided to apply for a job with Aecom Ltd. However, this required him to fill in an online application form. He contacted the company to say that he needed to make an oral application because his disability prevented him from engaging with online forms. The company sent several emails asking him to explain in more detail what help he needed. In response, he repeated his request to be allowed to make an “oral application”.
Mr Mallon then lodged a tribunal claim arguing that the company had failed to make reasonable adjustments under section 20 of the Equality Act 2010, thereby putting him at a substantial disadvantage compared with non-disabled candidates. For its part, the company asked the tribunal to strike out the claim or make a deposit order on the basis that Mr Mallon had previously completed online forms for them when he had worked with them in the past.
Relevant law
The duty to make reasonable adjustments comprises three requirements under section 20. The first applies where the employer is operating a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage with someone who is not disabled; secondly, it applies where a physical feature puts a disabled person at a substantial disadvantage with someone who is not disabled; and thirdly it applies where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage with someone who is not disabled.
Tribunal decision
According to the employment tribunal judge, it was “plain and obvious” that Mr Mallon could not establish that there was a PCP of an online form applied by the company that put him at a substantial disadvantage compared with non-disabled people. Apart from anything else, he could have asked for help from his partner, a job centre or an advice centre in completing the form, but he chose not to.
The judge therefore struck out the claim on the basis that it had no reasonable prospect of success. Mr Mallon, who was acting in person, appealed on the ground that the employment judge should not have found he had no reasonable prospect of establishing he needed a reasonable adjustment.
EAT decision
Upholding Mr Mallon’s appeal, the EAT held first that tribunals should not assume that an adjustment is not reasonably required because someone else (such as Mr Mallon’s wife) could provide assistance by completing the application form. Likewise, they should be careful not to conclude that a PCP does not place a disabled person at a disadvantage because someone other than the employer could resolve the issue for them.
Secondly, it pointed out that the tribunal had only considered the first requirement relating to a PCP under section 20. As such, it had overlooked the second and third requirements. Although Mr Mallon had not referred to the third requirement (to provide an auxiliary aid), it was important to remember that he was a litigant in person and could therefore have been struggling to articulate that what he needed was an auxiliary aid of some sort.
Thirdly, with regard to the decision to strike out the claim, the EAT held that it was important for tribunals to consider the proportionality of doing so, including the likelihood that it will result in saving expense and avoiding delay. In this case the hearing was likely to be short. As such, it should only be used in the “most obvious and plain cases”. The tribunal was therefore wrong to conclude that this case had no reasonable prospect of success.
It remitted the matter to a new tribunal for reconsideration.
Comment
This case is a reminder that employers should investigate properly whether a disabled worker is put at a substantial disadvantage by the physical features and the failure to provide an auxiliary aid as well as a PCP. It is, as the EAT said, all too common to focus on whether a PCP puts a disabled worker at a disadvantage. In cases where a disabled worker needs an ergonomic chair or voice recognition the effect of the failure to provide an auxiliary aid should also be considered.