Reasonable Adjustments – Actual or Constructive Knowledge and Reasonable Enquiries

In our blog, we compare two recent Employment Appeal Tribunal judgements considering claims of a failure to make reasonable adjustments. Particularly, the blog focuses on the often misconstrued topic of knowledge and how this impacts upon the duty to make reasonable adjustments.

AECOM Limited v Mallon

The Claimant applied for a job with the Respondent, whose recruitment process required an online application to be completed. The Claimant emailed the Respondent advising them that he had dyspraxia and requested that he be able to make an application over the phone. The Respondent emailed the Claimant offering him support with the online process but did not agree to telephone application. The Claimant subsequently brought a claim of a failure to make reasonable adjustments.

The ET found in favour of the Claimant. Whilst unaware of the exact difficulties faced by the Claimant in completing the online application, The ET found that the Respondent ought to have had the required knowledge of the disadvantage he was placed at as they ought to have phoned the Claimant to ask for more information. It was not reasonable to expect the Claimant to explain his difficulties via email given his disability.

The EAT

The Respondent appealed, arguing that whilst they knew that the Claimant had dyspraxia and had difficulties filling in the online form, they did not have actual knowledge of the substantial disadvantage that he was placed at.

The EAT acknowledged that the Respondent did not have actual knowledge of the disadvantage, confirmed to be the Claimant being too anxious to provide a username and password to begin the application. However, the EAT confirmed the ET were correct in concluding that the Respondent had constructive knowledge, as they ought to have known about the Claimant’s difficulties despite these not being previously confirmed.

Further, the EAT agreed that the ET had properly concluded that the Respondent was required to make reasonable enquiries as to the extent of the difficulties faced by the Claimant and, in this case, requesting these details via email was not reasonable.

Glasson v Insolvency Service

The Claimant applied for a promotion, which involved an oral interview. The Claimant made his employer aware, prior to the interview, that he had a stammer and as a result may take longer to answer the questions. However, the Claimant did not alert his employer to the fact that his stammer could also cause him to go into a ‘restrictive mode’ which resulted in him giving shorter answers to questions.

The Claimant was unsuccessful in his application, not because of his stammer but due to his answers being short and therefore low scoring. He brought claims of disability discrimination, including a failure to make reasonable adjustments.

The ET dismissed the Claimant’s claims, finding that whilst the Claimant was put at a substantial disadvantage by virtue of the interview process, the employer did not have actual or constructive knowledge of the fact that the Claimant may go into ‘restrictive mode’.

The EAT

Upon appeal, the EAT upheld the ET’s findings. In considering the employer’s knowledge, they considered the broader context of the matter, including that the Claimant had previously taken part in a similar interview and had not raised any concerns.

Looking Ahead

The above two cases highlight not only how fact specific cases are in the Employment Tribunal, but how important it is for employer to recognise that:

1. The duty to consider make reasonable adjustments can arise even when there is no actual knowledge. As in the case of Mallon, even where an individual provides little detail, an employer may be regarded as having constructive knowledge and thereby triggering the duty; and
2. Reasonable steps should be taken to enquire as to any disadvantage suffered. What is reasonable will depend on the circumstances of the case, including the particular disability of the individual.