Should an Employment Tribunal consider whether physical features and auxiliary aids could be a reasonable adjustment?
The recent case of Mallon v Aecom Limited (UKEAT/0175/20/LA) considers whether the Employment Tribunal (ET) erred in law by failing to consider physical features and auxiliary aids when assessing a reasonable adjustment case.
Under s.20 of the Equality Act 2010 an employer has a duty to make reasonable adjustments to help a disabled job applicant or employee in certain circumstances. This duty will arise if a disabled person is placed at a significant disadvantage by:
- an employer's provision, criterion or practice (PCP);
- a physical feature of the employer's premises; or
- an employer's failure to provide an auxiliary aid.
A failure in this duty to make reasonable adjustments means an employer could potentially be liable for a claim of discrimination.
The Claimant, Mr Mallon, who suffered from Dyspraxia, bought a claim against Aecom Limited, the Respondent, for its failure to make a reasonable adjustment by refusing to allow him to make an application orally. He argued that the requirement to submit his application online was a PCP which put him at a substantial disadvantage in comparison with a person who is not disabled.
The ET struck out the claim on the basis that the claim had no reasonable prospect of success because the Claimant would not be able to demonstrate he was put at a substantial disadvantage arising from the PCP, in comparison to those who are not disabled. The Claimant appealed.
The EAT overturned the decision finding the ET had erred in striking out the claim and was critical of this decision, considering it a draconian measure which must only be used “in the most obvious and plain cases” and rarely with discrimination. The EAT noted the importance of considering, in reasonable adjustment claims, the possibility that the case might be better analysed as a physical features or auxiliary aids case which the ET had failed to do in this case. The EAT also commented that whilst friends and family may be prepared to help a disabled person they should not be expected to step in, therefore saving the potential employer from having to make the adjustment itself.
Accordingly, the EAT upheld the Claimant's appeal and remitted the case to a freshly constituted ET.
Points to take away from the case
This case demonstrates that it will not always be the case that a reasonable adjustment claim relates to whether a PCP puts a disabled person at a substantial disadvantage and there should also be consideration as to whether there has been a failure to provide auxiliary aids and/or the need to make adjustments to physical features of an employer’s premises.
The ruling also emphasises the high hurdle for striking out discrimination claims.
The case is a useful reminder that job applicants are protected against discrimination by the Equality Act 2010 and employers should be making enquiries about and carefully considering any requests for reasonable adjustments made during the recruitment process.
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