Is there a duty to make reasonable adjustments for job applicants?
Employers have a duty under the Equality Act in some circumstances to make reasonable adjustments for employees who have a disability. Where a provision, criterion or practice (PCP) puts a disabled employee at a substantial disadvantage in comparison with employees who are not disabled, the employer has a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. An employer is not subject to the duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, that the employee has a disability and that he or she is likely to be placed at the substantial disadvantage. The duty to make reasonable adjustments relates not only to employees, but also to job applicants.
Mr C has dyspraxia. He applied to the employer for a consultant role. The application process involved completing a short online application form. To complete the form, applicants had to create a profile, including providing a username and password. Mr C emailed the employer indicating he wished to apply for the role and attaching his CV. He indicated that he has dyspraxia and included information about how dyspraxia affects people generally. He asked if he could make an oral application by telephone, and if that could be arranged by email.
The employer’s senior HR manager, Mrs P, replied explaining that the process required Mr M to complete the online application form, but that if he had concerns, he should let them know. She asked Mr M on a number of occasions to confirm which parts of the form he found difficult to complete and offered assistance in submitting the form. Mr M did not tell Mrs P that he could not create a username and password and log on to the online form. Neither Mrs P nor Mr M telephoned each other.
Mr M was not successful in obtaining the role and issued a claim in the Employment Tribunal for a failure to make reasonable adjustments for his disability in connection with his application.
The Tribunal found that the PCP was that applicants were expected to create an account to access the online form; and insert information on the online form in the spaces provided. Mr M was put at a disadvantage by those PCPs. It noted that Mr M had difficulties in expressing his thoughts in writing and was anxious about the process of completing an online form. The Tribunal found that the employer was aware of Mr M’s dyspraxia and that as a result, he had difficulty in filling in the online form. However, the employer did not know the specific reasons why Mr M could not complete an online form because Mr M had not told them.
The Tribunal considered whether the employer ‘ought to have known’ about Mr M’s difficulties with accessing the form. It noted that if the employer wanted further clarification of the reasons why he found the form difficult to complete, the employer should have telephoned him when he failed to respond to Mrs P’s emailed questions. It found that it was not reasonable to expect Mr M to explain these matters in an email.
The Tribunal found that the employer had failed to make reasonable adjustments in connection with Mr M’s job application.
Failure to make reasonable adjustments?
The employer appealed to the Employment Appeal Tribunal (EAT). The EAT held that the Tribunal was entitled to find that a requirement to complete an online form put Mr M at a substantial disadvantage. It was reasonable for the Tribunal to conclude that the employer ought to have telephoned Mr M to ask for more information about his difficulties when he failed to respond to its email questions. The Tribunal had found that if the employer had telephoned Mr M, he would have provided the specific details. It sent the claim back to the Tribunal to reconsider.
It is important for employers to actively consider whether they are under a duty to make reasonable adjustments in relation to job applicants during any recruitment process. In this case, the EAT noted that an important theme in the case law is that “consideration of whether an employer reasonably ought to have known whether the claimant was disabled and at the relevant substantial disadvantage requires the employer to make reasonable enquiries of the employee. An employer cannot ‘turn a blind eye’.” What is reasonable will depend on the circumstances in each case.
If the event of a successful claim, an applicant can be awarded a sum of money for injury to feelings. In this case, Mr M was awarded £2,000 for injury to feelings plus interest.
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15 September 2023
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