Aecom Limited v C Mallon

An employer’s duty to make reasonable adjustments depends on actual or constructive knowledge that a disabled applicant is likely to suffer the particular substantial disadvantage created by the relevant provision, criterion or practice. General knowledge of disability is insufficient.

Constructive knowledge requires reasonable enquiries, assessed in context. Where an applicant with known dyspraxia requests an alternative to an online application but cannot explain the difficulty in writing, it may be reasonable for the employer to telephone the applicant. The duty does not impose an unlimited or anticipatory obligation to investigate.

A material finding that an applicant was genuine is perverse where it rests on a factual premise contrary to undisputed evidence. The resulting issue must be reconsidered.

The claimant, who had dyspraxia, alleged that Aecom failed to make reasonable adjustments when he sought to apply orally by telephone for a consultant role in 2018 rather than use its online application process.

The Employment Tribunal upheld the claim under sections 20, 21 and 39(5) of the Equality Act 2010. It found that the claimant was a genuine applicant, that the online process placed him at a substantial disadvantage, and that Aecom ought reasonably to have telephoned him to ascertain his specific difficulties.

Aecom appealed on four grounds. It challenged the finding that the new role was in a different team from the claimant’s earlier role, and challenged the Tribunal’s approach to knowledge of disadvantage, reasonable enquiries and written communication.

1. Appeal allowed on ground 1 only; remitted. The Tribunal’s finding that the 2018 role was in a different team from the claimant’s previous role was contrary to undisputed evidence. Both roles were in the same R&D team, and the hiring manager for the 2018 role had been the claimant’s previous line manager. The error was material to the Tribunal’s conclusion that the claimant was a genuine applicant, because the supposed fresh start was a significant part of its reasoning.

2. The Tribunal had misstated the knowledge question in its formulation of the issues. Under paragraph 20 of Schedule 8 to the Equality Act 2010, the employer must know, or reasonably be expected to know, both of the disability and that the applicant is likely to suffer the particular substantial disadvantage imposed by the identified PCP. Knowledge of a general disadvantage arising from disability does not suffice.

3. However, on a fair reading, the Tribunal answered the correct question. It found that Aecom lacked actual knowledge of the claimant’s particular difficulty in accessing and completing the online form, but ought reasonably to have acquired that knowledge by telephoning him. The Tribunal’s reasons showed that it had applied a test of reasonableness, notwithstanding its imperfect statement of the law.

4. Reasonable enquiries are fact-sensitive and are not unlimited. On the Tribunal’s unchallenged premise that the claimant was a genuine applicant, it was open to it to find that a reasonable employer would telephone an applicant with dyspraxia who sought an oral alternative but did not answer repeated written questions about the difficulty. The finding was not perverse.

5. The case was remitted to the same Tribunal to reconsider whether the claimant was a genuine applicant for the 2018 role in light of the corrected facts. The remaining findings were not set aside.

• Employment Appeal Tribunal: Aecom’s appeal was allowed on the perversity ground and the matter was remitted to the same Employment Tribunal: [2023] EAT 104.
• East London Employment Tribunal: The Tribunal upheld the claimant’s reasonable-adjustments claim in a judgment sent on 5 March 2022. At a remedy hearing it awarded £2,000 for injury to feelings and £700 interest in a judgment sent on 3 January 2023.