Reasonable adjustments for neurodiverse job applicants
A reasonable employer would have picked up the phone…and other useful lessons from case law.
Many employers are working hard to attract neurodiverse employees and to develop policies and practices which support these employees to remain and thrive in the working environment. The recruitment process can be a tricky first hurdle for neurodiverse candidates and employers must ensure they make reasonable adjustments to any recruitment process when it creates obstacles for candidates with disabilities.
When does the duty to make reasonable adjustments arise in the recruitment process?
The duty to make adjustments will arise if:
an employer knows, or ought reasonably to know, of an employee’s disability; and
the applicant is placed at a substantial disadvantage by an employer’s provision, criterion or practice (PCP), a physical feature of the employer’s premises or an employer’s failure to provide an auxiliary aid.
What is a ‘reasonable’ adjustment will depend on the individual circumstances, but broadly the factors considered are the extent to which the adjustment reduces the disadvantage, how practicable the adjustment is, what the costs, financial or otherwise, of the adjustment are and what resources the employer has to implement them.
Adjustments which might be reasonable to make to the recruitment process
Whether any particular adjustment is reasonable will depend on the resources of the employer and the disadvantage faced by the applicant. The following list includes suggestions to consider, but these will not be relevant or reasonable in the case of every employer or applicant.
Adapt short-listing criteria to account for the impact of the disability on education and employment history
Arrange pre-visits so that the applicant feels more comfortable in the selection environment
Consider alternative approaches to personality type and psychometric tests which may have in-built bias against neurodiverse candidates
Explain selection tasks and questions in advance and allow preparation time
Ensure questions are short, focused and specific
Provide for alternative question formats
Allow oral rather than written responses
Allow candidates to use their own devices or technology
Interrogate any judgements at interview based on neurotypical expectations of social interaction and body language
Case law on multiple choice recruitment tests
In Government Legal Service v Brookes, the EAT held that a job candidate was discriminated against when the prospective employer insisted that she take a multiple choice psychometric test in the first round of recruitment.
Ms Brookes applied to join the Government Legal Service (GLS) as a trainee solicitor. She informed the GLS one month before the test of her Asperger’s syndrome and she requested that she be allowed to provide short narrative answers rather than choosing from a range of answers. The GLS refused. Ms Brookes took the test and failed to reach the pass mark.
Ms Brookes brought claims of indirect discrimination on the ground of disability, discrimination arising from disability and a failure to make reasonable adjustments. The GLS accepted that Ms Brookes is disabled and that it knew of her disability at the time of its refusal. Ms Brookes’ claims were successful at first instance despite the fact that the tribunal found that medical evidence was “inconclusive” on the question of whether Ms Brookes was disadvantaged by the multiple choice format because of her condition. The tribunal took into account that medical experts for each side agreed that the claimant fitted the profile of someone with Asperger’s who was likely to be disadvantaged in the test because of a lack of “social imagination”. The EAT agreed.
Ms Brookes was awarded £860 and the GLS was ordered to apologise to her. The tribunal also made a recommendation that the GLS review its recruitment practices and consider a more flexible approach to psychometric testing.
Recent case law on reasonable adjustments to the application process
Case details: AECOM Ltd v Mallon
Mr Mallon applied for a consultant role with AECOM Ltd. He was required to create a personal profile with a username and password in order to complete the online application form.
Mr Mallon emailed his CV to the HR department and asked if he could submit an oral application because of his disability (dyspraxia). Mr Mallon was told he had to complete the online application form and that assistance with submitting the form could be provided. He was also asked on a number of occasions by email to state which parts of the form he was finding difficult to complete. Mr Mallon did not provide this information. The HR department corresponded with Mr Mallon only by email and did not call Mr Mallon to discuss the application process. Mr Mallon’s application was not successful.
Mr Mallon brought an employment tribunal claim that the employer had failed in its duty to make reasonable adjustments to the application process.
The employment tribunal decided that the requirement to complete an online application form was a PCP which put Mr Mallon at a substantial disadvantage. The disadvantage in this case was that Mr Mallon was too anxious because of his dyspraxia to provide a username and password to begin accessing the online form. It found that the employer did not have actual knowledge of this disadvantage, but ought to have known that Mr Mallon’s dyspraxia could create difficulties for him in accessing the online form. The tribunal considered that a reasonable employer would have telephoned the applicant to ask for more details about his difficulties rather than expecting Mr Mallon to explain his difficulties by email, given his issues with written communication. The tribunal therefore found that AECOM Ltd failed in its duty to make reasonable adjustments and awarded him £2,000 for injury to feelings, together with interest of £700.
The EAT agreed but allowed AECOM Ltd’s appeal on the ground that the tribunal had made a material factual error when assessing whether Mr Mallon was a genuine applicant for the advertised role. The EAT remitted the case to the tribunal for reconsideration on this point.
Employers are expected to make reasonable enquiries of applicants about possible disadvantage due to disability
The duty to make reasonable adjustments does not arise if an employer does not know and could not reasonably be expected to know about the disability and that the applicant is likely to be placed at the particular substantial disadvantage when going through the application process.
However, employers cannot simply rely on ignorance to defend a claim. Mr Mallon’s case highlights that, where an employer has notice of an applicant’s disability and that a disadvantage might arise in the recruitment process because of that disability, the employer should take steps to find out more by making reasonable enquiries of the applicant.
How Wrigleys can help
The employment team at Wrigleys is expert in helping charities, third sector and education sector clients with complex employee relations, including allegations of discrimination in the recruitment process.
We can also help by advising on recruitment policies, processes and forms to lower the risk of complaints and claims arising.
Importantly, we work within the wider charities, social economy and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ wider governance and regulatory obligations, and their relationships with key stakeholders and funders impact on employment processes and decisions. Our wider team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.
You can also keep up to date by following Wrigleys employment team on Twitter
The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.