When do you have to make adjustments to online job applications for disabled candidates?

Asking candidates to apply for roles online is normal for many businesses and for good reason.  Online applications can be easier to filter and review, and it is an application method which, with the benefit of modern assistive technology, is usually disability friendly, allowing those with, for example, visual impairments or hearing disabilities to apply easily.

But employers cannot safely assume that an online application process is suitable for everyone, and insist that all candidates have to use that process.  A recent claim for disability discrimination brings a cautionary tale (AECOM Ltd v Mr C Mallon: [2023] EAT 104)

Mr Mallon, who has dyspraxia, had a history with AECOM Limited (international infrastructure consultants).  He had previously worked for them for eight months in 2017 before dismissal for unsatisfactory performance and he even brought a disability discrimination claim at that time which was settled (on the basis that he could apply for future roles). 

He applied again 9 months later to a role in a different office of the same business. 

The application process included a short online application form and candidates had to create a personal profile first, by providing their email address and creating a username and a password of eight digits including a special character.  Candidates then inserted information and answers on the online form in the spaces provided.

Mr Mallon did not use that process.  Instead, he emailed the HR Department attaching his CV.  He notified them that he had dyspraxia and sent them some general information about how dyspraxia affects people.  He asked to be allowed to make an application verbally because of his disability. 

The HR manager refused and insisted that he had to complete the online form, but invited him to let her know if he was struggling with any aspect of the form.  Mr Mallon did not respond to that.  He did not explain that he was unable to create a username and password.  He did not telephone.  Did he keep AECOM in the dark?

The HR manager did not call him either.  She was not directly involved in the recruitment process and she knew about his history with AECOM.  Were those good reasons not to call?

Mr Mallon brought an Employment Tribunal claim.  He won.  AECOM appealed.  The Employment Appeal Tribunal issued a judgement on 10 August this year:

  • Mr Mallon’s failure to explain the specific reasons why he could not complete an online form meant that AECOM did not have actual knowledge of the particular substantial disadvantage to which he had been placed by the requirement to complete the online form. 
  • However, actual knowledge is not the end of the story in disability discrimination claims.  He had let them know that he had difficulties in accessing the online form (he had not explained the reasons for it).  There was no good reason why someone could not have spoken to him to find out what difficulty he was having with the online application. 

So his failure to explain his difficulty in an email or to pick up the phone was not an answer to his claim.  The HR manager at AECOM could and should have picked up the phone and called him.  Emailing him (repeatedly) to ask him was not enough.  The phone call would have been a reasonable enquiry and if she had made that call, then he would have provided the details on the phone, and she would have known to make adjustments by allowing him to make an oral application, rather than using the online form.  His failure to respond was because he was having difficulties with written communication. 

Picking up the telephone to understand a disabled job applicant’s needs might seem like an obvious step to take, but it is an easy mistake to make.  In this case it proved to be an expensive mistake as this claim involved a huge expenditure of legal costs in defending the company, ultimately unsuccessfully.

As computers and software processes become more sophisticated, we come to rely on these excellent tools as our way of dealing with the problems that arise in the workplace.  There has been a lot of debate recently about the role of artificial intelligence in HR and whether it will reduce the need for humans doing human resource management.  However, this case makes clear that we all need to be alert and ready to step outside of our standard processes.

Action Points:

  1. Review and Update Application Processes: Ensure that your online job application processes are designed to be accessible to candidates with disabilities. Regularly review and update these processes to align with modern assistive technology and consider the potential needs of candidates with various disabilities.
  2. Implement Clear Communication Channels: Establish clear communication channels for candidates to request adjustments or alternative application methods. Encourage candidates to reach out if they face any difficulties during the application process due to disabilities.
  3. Prompt Response and Enquiry: Train HR managers and staff to promptly respond to requests for adjustments and to make enquiries about the specific difficulties faced by candidates with disabilities. Encourage open and empathetic communication.
  4. Document and Document Again: Document all interactions and communications with candidates, especially those involving disability-related requests and adjustments. Maintain a record of the steps taken to address such requests, demonstrating a proactive approach to compliance.
  5. Seek Early Legal Advice: In cases involving disability discrimination claims or potential legal issues, take legal advice promptly and proactively. Seek advice on how to navigate the situation, implement appropriate adjustments, and mitigate potential legal risks.

This is ACAS’s guidance on reasonable adjustments: What reasonable adjustments are: Reasonable adjustments at work – Acas

Specific advice on this issue will be covered under our Employer Support Scheme which provides unlimited advice on day to day employment issues from just £95 plus VAT per month.  For more information see https://www.keelys.co.uk/employment/ or email proberts@keelys.co.uk

Copyright ©2023 Keelys Solicitors LLP. All rights reserved.

Keelys LLP is authorised and regulated by the Solicitors Regulation Authority with SRA No. 490684. | Registered number: OC337482.