Was the Employment Tribunal wrong in failing to consider auxiliary aids when assessing a case concerning reasonable adjustment in the recruitment process?
Yes, it was held in the Employment Appeal Tribunal case of Mallon v Aecom Ltd.
There is a statutory duty on employers under the Equality Act 2010 to safeguard against discrimination on the grounds of disability, which applies equally to both current employees and job applicants. In order to do this, employers must make ‘reasonable adjustments’ to a recruitment process if a disabled applicant would be placed at a significant disadvantage but for the provision of an auxiliary aid or due to a provision, criterion or practice (PCP) of the employer or a physical feature of the employer’s premises.
This particular case concerned Mr Mallon, who suffered from dyspraxia. Mr Mallon claimed that he needed a reasonable adjustment to make a job application to Aecom Ltd, which was that he was able to apply orally instead of online. Aecom refused, and Mr Mallon subsequently claimed that they had failed to make reasonable adjustments for his disability by not allowing him to apply orally.
In the first instance, the claim was struck out as the Tribunal held that Mr Mallon would not be able to demonstrate substantial disadvantage arising from the practice of requiring an online application, and therefore he had no prospects of success.
On appeal however, the decision was overturned as it was held that the Tribunal failed to consider if ‘auxiliary aids’ should also have been considered (in other words, that Mr Mallon may have been arguing that he needed an auxiliary service to help him when completing the online application form, and Aecom Ltd’s failure to provide this was a breach of their duty to make reasonable adjustments). On this basis, the claim should not have been struck out due to lack of prospect of success, and it was upheld and sent to the Tribunal once again for fresh consideration.
This case is a stark reminder for employers to ensure they are doing all that is reasonable to comply with their duty to make reasonable adjustments in the recruitment process, even at the very initial application stage. Employers should always ask candidates if there are any such adjustments they need to progress their application and carefully consider any requests received.
The ruling also is a reminder to parties about the high hurdle required for striking out discrimination claims. The EAT commented that strike out must only be used “in the most obvious and plain cases” and this threshold will rarely be met in discrimination claims.
Is the decision not to pay a man enhanced pay during a period of Shared Parental Leave direct sex discrimination?
No, according to the recent decision of the EAT in Price v Powy County Council.
When Mr Price and his wife found out they were having their first child, they decided that they would like to take Shared Parental Leave (SPL) and Mr Price would stay at home to care for the baby and his wife would take her two weeks compulsory maternity leave and then return to work. Mr Price asked the Council what he would receive whilst off on SPL. The Council confirmed that he would receive statutory shared parental pay.
The Council offered employees on Statutory Maternity Leave or Statutory Adoption Leave enhanced maternity or adoption pay which was higher than the statutory rates of pay. Mr Price brought a claim against the Council alleging that it was direct sex discrimination to pay enhanced pay to employees on Statutory Maternity Leave or Statutory Adoption Leave and not to employees on Shared Parental Leave.
During the proceedings Mr Price compared himself to a female employee on Statutory Adoption Leave receiving adoption pay. The EAT held that the Tribunal was correct in applying the Court of Appeal’s decision in Capita Customer Management Ltd v Ali and held that Adoption Leave is materially different to SPL as its purpose goes beyond simply providing childcare. The requirement in s23 of the Equality Act 2010 that there must be no material difference in circumstances between Mr Price and his comparator was not met, so the claim failed. The correct comparator would be a woman on SPL and given that the comparator would have received the same pay as Mr Price, there was no discrimination.
The decision is not surprising based on the Court of Appeal’s judgment in Capita Customer Management Ltd v Ali and offered clarity to employers that failure to offer enhanced pay during SPL is not technically discriminatory under the Equality Act 2010. However, there is no doubt that such a decision and policy do not help to tackle the long-standing position that women continue to bear the greater responsibility for childcare. This case and the Ali case do show that there is an appetite amongst employees to take on this status quo, however, at present it remains to be seen whether it will have any difference on the future approach to family leave policies.
For more information on how any of these cases affect you or your business, please contact Burnetts Employment nd HR team at firstname.lastname@example.org
or 01228 552222.