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. (A tribunal in 2022 later upheld his reasonable adjustment claim, but that will be reviewed following a 2023 EAT decision.)
2021, Employment Appeal Tribunal (EAT). Full decision www.bailii.org/uk/cases/UKEAT/2021/0175_20_2002.html. (Also employment tribunal decision (gov.uk), 2022.)
Facts
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 [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 EAT sent the case 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; and
- 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.
EAT: 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 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 [27, 30].
The claimant had not put the claim as either a PCP or an auxiliary service case [27, 31]. However he was a litigant in person. The EAT continued:
27. …. 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.
EAT: Help from friends and family etc
The EAT said tribunals should be cautious in assuming that the possibility of help from others such as friends and family was adequate reason not to make a reasonable adjustment:
22. 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 [sic] 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:
36. … 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:
39. … [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. …
Employment tribunal decision, 2022
Update: See now this 2023 EAT decision considering the 2022 decision below.
Tribunal: facts found
After the EAT decided that the claim should not be struck out, the case proceeded to be heard by an employment tribunal which upheld the reasonable adjustment claim.
The tribunal said the claimant found it difficult to organise his thoughts clearly in written communications. He much preferred to communicate orally, either in a face-to-face meeting or by telephone. His difficulty in organising his thoughts in writing extended to difficulty in creating and repeating the same password if the password was expected to include both letters and special characters such as punctuation signs, particularly if the password is not visible when typed [8]. Therefore the claimant had particular difficulty with the first part of the employer’s online application process which involved creating an account with a password [13-15].
The claimant repeatedly emailed the employer asking to do the application form over the phone (he had emailed them his CV), and included information about dyspraxia though not his own symptoms specifically. The employer kept responding that the claimant might receive assistance in submitting the form if necessary, so if there were elements of the form he found difficult to complete could he please let them know what parts and the employer would provide assistance. [16-42]
Tribunal decision, 2022
The employment tribunal accepted the employer had a provision, criterion or practice (PCP) that candidates for job vacancies were expected to apply on an online form [64]. Also this PCP put the claimant at a substantial disadvantage; he found the task of filling in the online form too stressful to undertake, given his particular difficulties in expressing his thoughts in writing in the context of previous difficulties he had experienced with online forms [66, 15].
The tribunal decided the lack of knowledge defence did not apply – ie the employer had actual or constructive knowledge of the disability and substantial disadvantage. The employer knew that the claimant had dyspraxia [68] and that as a result he had difficulty in filling in the online form [69]. The claimant had not identified to the employer the specific reasons why completing an online application form was a particular difficulty [69]. However if the employer wanted further clarification of the reasons, it could have asked him to provide more detail by telephone [70]. Employers had a duty to make enquiries:
71. The caselaw requires employers to make enquiries as to the extent of the difficulties that a disabled person may face, at least in circumstances where the general difficulty has been raised by the Claimant. The onus is on the employer to seek the information rather than on the employee to provide the information. Given his difficulties with written communication, it was not reasonable to expect the Claimant to explain these matters in an email. The Claimant had provided his phone number and suggested convenient times when he could be contacted. As [the Senior HR Manager] accepted in the course of oral evidence, with hindsight she should have telephoned the Claimant to find out further information.
[See Knowledge of disability>Constructive knowledge – taking reasonable steps to find out]
The tribunal found the employer should have made reasonable adjustments. It should have either emailed the claimant a log-in and a password so he could create an account (there was a system to then import information from LinkedIn), or phoned him in order to carry out an oral application, recording his answers on the application form and then sending him the completed form to check [73]. The tribunal rejected the employer’s argument that this was not reasonable because the claimant could have sought assistance from his wife or someone else. The tribunal noted the EAT’s comment (above) at para 22. Here the claimant’s wife had agreed to help him with applications that led to an interview, but not to help write initial applications. She was not his carer, and had her own responsibilities. [74-75]
The EAT had raised the possibility of framing this case as a failure to provide an auxillary aid, rather than as a PCP case: above EAT: Auxiliary aids and services. However the parties had not argued the case as one on auxiliary aids, and the tribunal did not need to consider the issue since it had found in favour of the claimant anyway [55].
My comments
Auxiliary services
The EAT 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, or that an adjustment was not reasonably required, 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’s 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 EAT decision in Mallon, where the court did not mention human rights, could be a further useful precedent 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 [eg para 11 of EAT decision], though with his CV he had sent a fact sheet about the difficulties faced by people with dyspraxia [40]. The EAT commented that the correspondence seemed to show a degree of intransigence on both sides [37]. (The employment tribunal later found that on the evidence the employer knew or could reasonably be expected to know that the claimant was at a substantial disadvantage: above Tribunal decision, 2022).
From a practical point of view, the EAT commented [48] that his chances of obtaining work would increase if he explained 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.
