The Equality Act applies to every stage of the employee lifecycle and yet the most common claims arise during the course of employment or, invariably, as part of the termination.
Claims which are based on recruitment and application are relatively rare but they do happen.
All discrimination claims potentially arise in the recruitment process but the most common are under section 15 of the Equality Act (something related to a disability) and reasonable adjustments claims under sections 20-22.
In this article,Chris Dobbs looks at a recent case where a claim for disability discrimination rose at the job application stage.
AECOM Ltd v Mallon
In the case of AECOM Ltd v Mallon, being heard on appeal, the EAT made a ruling that the Tribunal was correct to consider an online application form might put an applicant with certain disabilities at a substantial disadvantage.
The Claimant had dyspraxia and argued that the online nature of the application form meant he had difficulties accessing the form compared to those without such a disability.
He had emailed the HR department asking if he could complete an oral application because of the difficulties. This was refused but he was told assistance could be provided in complete the online form.
The HR officer asked several times what elements of the form the Claimant was struggling with and neither party picked up the phone to discuss the matter.
What did the original tribunal find?
The original Tribunal found that the failure to allow a telephone/oral application was a failure to make reasonable adjustments. Specifically, the Tribunal found that the Claimant was too anxious to take the required steps in order to access the system in the first place.
It is interesting to note that the company was also deemed to have constructive knowledge of his disability, something the EAT upheld.
The case was, however, remitted to the Tribunal on a point of material factual error: the EAT found that the original Tribunal had made a mistake in assessing whether the Claimant genuinely wanted the role which goes to whether there was a detriment suffered overall.
An Employment Lawyer’s View
Chris Dobbs said: “Serial litigators have been caught out with this point and the Tribunal is clear that applications must be genuine in order for such claims to succeed.
This is a cautionary reminder that every consideration given to a disabled employee must also be given to a disabled applicant in order to avoid costly discrimination claims.”
Related: The legal implications of recruitment that employers need to know
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