Neurodiversity and recruitment
Tuesday 3rd October 2023
Neurodiversity and recruitment – the duty to make reasonable adjustments when dealing with job applications
The Employment Appeal Tribunal recently upheld a decision that an employer failed to make reasonable adjustments for a job applicant with dyspraxia when dealing with his application in AECOM Limited v Mallon.
Facts & Decision
Mr Mallon applied for a position with AECOM in 2018 in the R & D department and was required to complete a standard online application form. Due to his dyspraxia, he had particular difficulties expressing his thoughts in writing – this included setting up his personal profile which required him creating a username and password. Because of his prior experience with online forms, he emailed the HR department requesting a telephone application process, together with a copy of his CV and information about how dyspraxia affects people generally.
In response, AECOM emailed Mr Mallon on several occasions asking them to clarify his specific difficulties with AECOM’s online forms, and to offer support from the HR team with the online process. Mr Mallon never responded to these emails for fear of being laughed at (according to Mr Mallon, this happened with another employer). Nevertheless, AECOM never offered a telephone application process as an alternative and Mr Mallon ultimately failed his job application.
Mr Mallon then brought a claim against AECOM for failing to make reasonable adjustments for his disability. His argument was that AECOM’s provision, criterion or practice (PCP), namely the need to complete an online application form, put him (a disabled person) at a substantial disadvantage compared to a non-disabled person.
The EAT upheld the tribunal’s finding that AECOM ought to have known that Mr Mallon’s dyspraxia meant that he had difficulty completing the online application form. Mr Mallon was clear about his disability in his emails and had the HR team made reasonable enquiries (for example, calling Mr Mallon after he failed to respond to HR’s emails seeking clarity), it would have been able to find out more about Mr Mallon’s difficulty with the online application. As such, the EAT agreed that AECOM had constructive knowledge of Mr Mallon’s disability, and therefore should have fulfilled its duty to make reasonable adjustments.
Comment
The EAT ruling may be surprisingly harsh, but it highlights the importance of employers having a basic understanding of the types of challenges that neurodiverse individuals may face during recruitment processes.
It is for the employer to make adequate enquiries to establish whether an applicant is (or could be) disabled, and if so, what reasonable adjustments can be made to remove that substantial disadvantage to that applicant. This is especially relevant if the applicant has indicated potential difficulties with the employer’s application process. Where the applicant has not provided specifical details, the onus is on the employer to make adequate enquiries about the applicant’s disability, by methods of communication that the applicant can rely on.
