Weekly blog: Discrimination during recruitment? Food for thought
Another week, means… (you must have got the gist by now)…another blog and this time it is me in the hot seat.
The last few weeks have marked some really lovely occasions for me. The first one being- my year anniversary of working here at Precept. I cannot believe where the time has gone- it not only feels like I have been here forever, but also like I just started yesterday- all at once. I can honestly say it has genuinely been the best year. Not only a year of working with the most amazing people and for the most incredible employer, but also a year of learning, learning, learning. I feel like my experience since qualifying has come on leaps and bounds since joining the Precept venture and that’s fully down to not only having the best team surrounding me, but also some blooming brilliant clients.
Another milestone for me was turning another year older- wooop! I spent this past weekend doing some suitably awesome activities- of which involved seeing the Barbie film (which I loved every second of- and actually at points made me tear up- not sure whether I should blame pregnancy hormones or just the fact it was just brilliant. Full stop) Having some scrumptious food and going to Yorkshire Wildlife Park for the day. As you can probably tell, we are trying to get as many activities in as possible before the little one comes along.
So my weekend was pure bliss, and now we are back to the grind!
Right, so what juicy nuggets of information can I give you this week then? I know that is what you’re all waiting to read about.
Well… one really key thing that I think can sometimes fall under the radar without us realising it is the fact that discrimination claims are not just claims that crop up if the individual is an employee of yours but they’re also something that can trip employers up if the employer drops the ball in their recruitment process.
It just so happens a recent case demonstrates this perfectly…
The law
Before I get into the detail of it, let’s just remind ourselves of your duty as an employer in the eyes of the law:
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The case - AECOM Ltd v Mallon [2023] EAT 104
This recent case involving AECOM Ltd demonstrates perfectly what can go wrong in terms of discrimination in recruitment.
The facts are relatively straight forward. Mr Mallon had dyspraxia. He applied for a research and development job with AECOM in August 2018 and as part of the application process he had to complete a sort application form. That meant he had to create a personal profile giving info like his email address and creating a username/password. Mr Mallon contacted AECOM’S HR, attaching his CV and asking that he be able to make an oral application due to his disability. Interestingly enough, his CV included information about his dyspraxia and how it impacted people generally. Email correspondence ensued and the HR manager kept repeating that Mr Mallon needed to complete the online form, but to let her know if he was struggling. Mr Mallon did not divulge to AECOM that he couldn’t create a password or username but did keep repeating his request to do the application form online. AECOM did not call Mr Mallon or offer any other support.
As Mr Mallon could not make the application, nor received any further support, he brought a disability discrimination claim arguing that AECOM had failed to make reasonable adjustments.
The Employment Tribunal upheld Mr Mallon’s claim. They said that AECOM applied a two-part PCP (the requirement to create an account, the requirement to answer questions on the online application form in the spaces provided). This PCP put Mr Mallon at a substantial disadvantage because as a result of the particular difficulties of expressing his thoughts in writing, in the context of previous difficulties experienced with online forms, he was too anxious about the process of completing an online form to embark on the first stage of the application process.
Lastly, the tribunal said that AECOM ought to have known that Mr Mallon was at a substantial disadvantage because if it had wanted further clarification of the reasons why he found it difficult to complete the online application form, it should have telephoned him. Given his difficulties with written communication, it was not reasonable to expect Mr Mallon to explain these matters in an email.
AECOM did appeal. Their main arguments being that the Tribunal had failed to assess their knowledge of the disadvantage, that they had failed in their approach regarding the burden they put on them to make enquiries into an employee’s disability and that they were not right when deciding that Mr Mallon shouldn’t have provided an explanation of the difficulties he was having.? AECOM were unsuccessful, the EAT dismissed the above grounds.
Why is this is important Robyn?!
Now you’re maybe wondering why I am telling you about the above. Well, although it was a bit of a whistlestop tour the case is important as it illustrates the clearly how vital it is for you as an employer to have robust internal procedures for dealing with issues that might arise in recruitment exercises. These should include your making sure you’re flexible (where reasonably required) in your approach to applications. In this case, picking up the telephone to understand a disabled job applicant's needs might seem obvious here it was overlooked.
The moral of the story in this one? Make sure that your processes are airtight, even when it comes to recruitment. If you have any queries about this or need any assistance, then reach out to one of us here at Precept!
Speak sooooon!
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