by Breda O'Malley , Gráinne Carville October-24-2023 in Employment Law, Mediation
Employers have grown increasingly aware of recruiting, supporting and promoting individuals with neurodivergent needs, who may perceive and respond to the world differently to how a ‘neurotypical’ person might.
In a recent Employment Appeals Tribunal (“EAT”) decision of Aecom Limited v Mallon [2023] EAT 104 in the UK, the EAT considered the extent of an employer’s duty to provide reasonable adjustments. The EAT found that the employer failed in their obligation to make reasonable adjustments for a job applicant for his disability (dyspraxia). Mr Mallon applied for a role in Aecom Limited (the “Company”) by emailing his CV to the Company, noting that he had dyspraxia and included general information on dyspraxia. The EAT found that the employer should have made further enquiries about his challenges and difficulties, so as to assess what support he may require.
Relevant Facts
As part of the application process, Mr Mallon was required to fill out an online form, which included a requirement to set up a profile with a password.
Mr Mallon emailed HR to ask could he do an oral application to discuss his experience. HR told Mr Mallon that the application process required that he complete the form, and repeatedly asked him to let HR know which parts of the form he was experiencing difficulty with, so he could be supported. Mr Mallon did not reply to HR. Instead, he submitted a claim, alleging failure on the part of the Company to offer him reasonable adjustments in the application process. The case was heard on appeal by the EAT, and the claim was upheld on the basis that the Company failed in its duty to make reasonable adjustments for Mr Mallon. The EAT held that the employer ought to have sufficient understanding of what it meant for Mr Mallon to have dyspraxia, and ought to have called him by phone to make further enquiries about the difficulties he was facing when he hadn’t responded to the email from HR.
Approach in Ireland
This UK decision may be informative for employers in Ireland, who have a duty under Irish law to make reasonable accommodations for employees and job applicants who have a disability, such as dyspraxia or other neurodivergent perspectives. In Ireland, signs, symptoms or indications of a disability may mean that the employer is considered to have the requisite knowledge of a disability, and in turn, requires the employer to make enquiries about a person’s need for reasonable accommodations.
In Ireland, the employer’s obligation is to provide reasonable accommodation for a person with a disability, so they can be employed, promoted and trained. This is unless the recommended ‘accommodations’ for the person with the disability would cause a ‘disproportionate burden’ on the employer.
Practical Tips for Employers
- Remember that obligations may arise where there is an indication from an employee or a job applicant that they have a disability. Where you suspect, based on objective signs, symptoms or indications, that an applicant or an employee may have a neurodivergent perspective, discretely make further enquiries of the individual;
- Where an individual has a neurodivergent perspective, ask them what accommodations may be made to assist them in their job application or employment; and
- Consider training for company personnel so they may understand how various neurodivergent perspectives may impact different individuals and the supports and accommodations that may support the individuals affected.
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About the Authors
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.
Gráinne Carville
Gráinne is a newly qualified solicitor in the Employment Law team at Hayes solicitors LLP. Since qualification, Gráinne has advised public and private clients in transactional, advisory and litigation contexts.