The claimant had dyspraxia, and argued he should have been allowed a reasonable adjustment of applying for a job orally rather than having to do so online. The EAT held the Employment Tribunal had been wrong to strike out the claim as having no reasonable chance of success. The judge should have considered the possibility that this case was about an auxiliary aid or service, rather than just a PCP. Also tribunals should be cautious in assuming that the possibility of help from others such friends and family was adequate reason not to make a reasonable adjustment. My comments are below, eg on someone else speaking for the person who stammers.
2021, Employment Appeal Tribunal (EAT). Full decision www.bailii.org/uk/cases/UKEAT/2021/0175_20_2002.html
The claimant had dyspraxia. He contended that he required a reasonable adjustment of being allowed to make a job application orally, rather than online. The employment tribunal struck out his claim as having no reasonable prospect of success.
The employer accepted for the purpose of the strike out application that it had applied a provision, criterion or practice (PCP) of requiring an online application (para 32). However the tribunal agreed to strike out the claim on the basis that the claimant would be unable to establish that the PCP placed him at a substantial (ie “more than minor or trivial”) disadvantage in comparison with non-disabled people.
Held by the EAT: The employment judge had erred in law. The case was sent back to a different tribunal to consider. For example, said the EAT:
- the judge should have considered the possibility that this case was about an auxiliary aid or service (below) rather than just a PCP;
- whether the option of getting help from others (below) to complete the online form meant any disadvantage to him was no more than minor or trivial was likely to require a careful factual analysis.
Auxiliary aids and services
The EAT pointed out that adjustments related to PCPs are only one of the three types of reasonable adjustment claim. The tribunal had not considered whether the claim should be analysed on the basis that the claimant was contending that he needed an auxiliary service, namely a person – provided by the employer – to complete the online form during or after a discussion with the claimant (para 27, 30).
The claimant had not put the claim as either a PCP or an auxiliary service case (para 27, 31). However he was a litigant in person. The EAT continued:
Tribunals should have in mind when determining the issues in reasonable adjustments claims that it may not be a PCP case but may be about physical features (including furniture etc) or auxiliary aids (including services). For example, it is all too common for claims in which an employee contends that s/he needed an ergonomic chair, or voice recognition software, for the claim to be incorrectly analysed in terms of PCPs.
Help from friends and family etc
The EAT said tribunals should be cautious in assuming that the possibility of help from others such friends and family was adequate reason not to make a reasonable adjustment:
If an employer, would otherwise be under a duty to make an adjustment, care should be taken before it is assumed that the adjustment is not reasonably required because someone else can make the adjustment. Friends and family may be prepared to help a disabled person, but they should not be expected to step in and make a reasonable adjustment for an employer, or potential employer, to save it from the trouble of having to make the adjustment itself. Similarly, great care should be taken before concluding that a PCP does not place a disable person at a disadvantage because someone other than the employer, or potential employer, can provide the help that would otherwise have been required as a reasonable adjustment.
As to whether the claimant specifically was put at a substantial (ie more than minor or trivial) disadvantage by the application needing to be made online, the EAT said:
… the fact that the Claimant could seek assistance in completing the online application, did not necessarily mean that he was not put at a substantial disadvantage by having to do so. If a person who did not have a disability could complete the form without assistance, depending on the facts of the case, the requirement for assistance, itself, could be a disadvantage that is more than minor or trivial. Most people would want to be able to complete a job application themselves, without having to rely on their friends and family. Proper determination of this point is likely to be fact sensitive.
Also, as regards the possibility of a partner, job centre or advice centre helping him to complete the form:
… [whether the claimant was at a substantial disadvantage] would be likely to require a careful factual analysis, particularly to avoid a determination that an employer could avoid a duty to make reasonable adjustments by, in effect, requiring that someone else make the adjustment for them.
The decision is a useful reminder that a PCP is not necessarily required for a reasonable adjustment claim. An alternative option is a claim for an auxiliary aid or service by way of reasonable adjustment. Mentoring to support an employee might be an example (and that link gives others). Another option is reasonable adjustments related to physical features.
Help from others
The EAT urged tribunals not to be too ready to find the disabled person was not at a substantial disadvantage because they might get someone else to help.
This is reminiscent of LH Bishop v Commissioners of Revenue and Customs, 2013, where the First-tier Tribunal (Tax) found that having to use friends and family to file online returns on the business’ behalf, or to use the computer of a friend or family member, would be an unjustified breach human rights, in particular Article 8 (private and family life), and Article 14 (discrimination) in conjunction with Article 8. See LH Bishop v Commissioners of Revenue and Customs>Relevance to speech impairments: having someone else phone for you. I suggested before – at Human rights and provision of services>Telephone – that this LH Bishop decision and its human rights arguments could be useful against, say, a service provider arguing that no reasonable adjustment is required as regards a phone call because the person who stammers could get someone else to speak for them.
The present Mallon case, where the EAT did not mention human rights, could be a further useful case to cite if arguing against a service provider in this kind of situation.
A related point is disabled people being entitled to personal autonomy: Human rights and provision of services>Personal autonomy.
Substantial means only “more than minor or trivial”.
Knowledge of disadvantage
The claimant here had not answered the employer’s questions on what parts of the online process were problematic (para 11), though with his CV he had sent a fact sheet about the difficulties faced by people with dyspraxia (para 40). The EAT commented that the correspondence seemed to show a degree of intransigence on both sides (para 37). If the claim goes to a full hearing, presumably one issue may be whether the employer knew or could reasonably be expected to know that the claimant was at a substantial disadvantage.
From a practical point of view, the EAT commented (para 48) that his chances of obtaining work would increase if he explains to any prospective employers the nature of his disability and the effects it has on his ability to complete online forms; and co-operates with them to find effective means for him to make his applications.