Hello and welcome to this week’s case of the week. Today, we are looking at reasonable adjustments. Specifically, whether the failure to permit a job applicant with dyspraxia to submit his application orally, as opposed to by way of an online form, is a failure to make reasonable adjustments.
The factual matrix is simple. The Claimant is a dyspraxic man. He struggles to fill out online forms. He requested that he be allowed to submit his application orally (by way of telephone, with the Respondent transcribing his answers). The Respondent refused. He subsequently submitted a claim of failure to make reasonable adjustments.
The Claimant was a litigant in person. This means he did not have any lawyers. This resulted in his claim being submitted in fairly vague terms. The Equality Act 2010 requires that where a disabled person is put at a substantial disadvantage by
a) a provision, criterion, or practice (PCP) of the employer’s
b) a physical feature of the employer’s premises
c) a failure by the employer to provide an auxiliary aid, the employer has a duty to take such steps as is reasonable to avoid that disadvantage.
The employment tribunal interpreted this as a PCP case. At preliminary hearing, it struck out the Claimant’s claim on the grounds that it had no reasonable prospects of success. The Claimant appealed this decision.
Employment Appeal Tribunal
It must be remembered that this decision only relates to the Employment Tribunal’s decision to strike out the claim, not whether the claim itself succeeds. The EAT held that the Employment Tribunal was wrong to strike out the Claimant’s claim: it could not properly have concluded there were no reasonable chances of success.
It held that strike out must only be utilized in “the most obvious and plain cases” and rarely in discrimination cases. It also noted the apparent discrepancies in the judgment, such as:
- Failure to properly conclude whether or not the requirement of an online application form was a PCP; and
- If it could be, whether the Claimant suffered a substantial disadvantage in having to fill it out. The EAT noted that although the Claimant could have filled out the form with the assistance of his partner, this does not preclude him from having suffered a ‘substantial’ disadvantage, which is defined as a ‘more than minor or trivial’ disadvantage. It is at least arguable that the Claimant’s circumstances met this threshold, and therefore to strike out the claim was improper.
Moreover, the EAT held that the Employment Tribunal failed to properly consider whether the Claimant’s claim could be considered as an auxiliary claim (c above) as opposed to a PCP claim (a above). It noted that PCP claims are the most submitted, with the other two (b and c above) often being neglected. As the claimant was a litigant in person, the court should not have presumed he intended to submit a PCP claim. Instead, it should have considered the merit of an auxiliary claim.
The judgment reminds us of several things:
- An employer’s duty is not just to remove any substantial disadvantage suffered by a disabled person because of a PCP (if it is reasonable to do so). It also extends to removing disadvantages suffered because of the physical aspects of the employer’s premises, and a lack of auxiliary aid.
- The bar for striking out discrimination claims is very high.
- Job applicants (as well as employees) are protected from discrimination. Employers are best placed to ask candidates whether they require any reasonable adjustments and consider any responses carefully.
This comes down to ensuring your employees are trained in discrimination issues so that they are aware of issues and can nip problems in the bud.