Recent cases have highlighted the importance of HR teams and managers having a basic knowledge of the types of challenges neurodivergent individuals can face in dealing with common recruitment and workplace processes and practices, but not assuming that everyone with a given condition will have the same difficulties. It will always be important to obtain information about an individual’s specific difficulties so that reasonable adjustments are made to remove any substantial disadvantage faced by a particular disabled candidate/employee. Being open-minded and flexible about how information is communicated will often be an important first step and may be enough in itself or enable other reasonable accommodations to be identified.
In AECOM Ltd v Mallon, the EAT upheld a tribunal judgment that an employer had failed to make reasonable adjustments for a job applicant with dyspraxia who asked to make his application orally rather than complete an online form. M’s condition causes him particular difficulties expressing his thoughts in writing and, because of prior experience with online forms, he was too anxious about the process of completing an online form even to start the process of creating a username and password. He had emailed the HR department attaching his CV and including the information that he had dyspraxia and about how dyspraxia affects people generally (although not his particular difficulty creating a login), and had asked in bold capitals to be permitted to make an oral application because of his disability. He asked that this be arranged by email and stated he would supply a phone number if emailed. The employer made repeated email requests asking him to confirm his specific difficulties with the online form. M did not respond to these, nor did he phone the employer for fear of being laughed at (due to his prior experience with another employer), but instead repeated his request to provide the information for the online form over the phone or to make an oral application.
The EAT upheld the tribunal’s finding that the employer ought to have known that M’s dyspraxia meant that he had difficulties accessing the online form. Employers must make ‘reasonable’ enquiries as to the extent of the difficulties that a disabled person may face. Given the employer had requested more details of M’s difficulties by email and received no written response, it would have been reasonable to have telephoned M (and it would then have been able to make reasonable adjustments to facilitate M’s application). Given M’s problems with written communication, it was not reasonable to expect him to explain his specific difficulties with the online application process in an email.
Similarly, in Duncan v Fujitsu Services Ltd, the employment tribunal held that an employer had failed to make reasonable adjustments for an employee with Autistic Spectrum Disorder by insisting on staff mainly having work discussions orally. D often struggled to communicate orally, and it would have been a reasonable adjustment to allow him to communicate mainly in writing, not require him to phone in when sick, and to provide a written agenda before meetings. He also succeeded in his harassment claim in relation to the employer’s decision to agree to his mother’s request to discuss his sickness absence without his consent or other lawful excuse, in breach of data privacy law. Clearly it might be appropriate in some situations to contact a relative without consent, for example if seriously concerned about an individual’s physical or mental wellbeing and the individual’s consent cannot be obtained, but it would be prudent to make the confines of this clear in a general policy, to which line managers can refer, and in appropriate cases potentially to agree this with an individual in advance.
Rackham v Judicial Appointments Commission demonstrates the fact-specific nature of these cases and that employers can reasonably refuse adjustments which would undermine those parts of the selection process needed to ensure successful candidates can perform in the role. R has Autism Spectrum Disorder and Asperger’s Syndrome, which causes him difficulty with one-to-one communication and in imagining and dealing with theoretical and hypothetical situations as opposed to real situations. The tribunal held that it was not a reasonable adjustment to a recruitment process for a judicial role to accede to R’s request to simplify the written questions in a skills test or allow R to complete a practical task instead, given that the questions were designed to replicate the requirements of the role and it would have been far too onerous to turn the test into a mock scenario. R had been given extra time to complete the test with the assistance of someone he knew and allowed to submit his answers offline or by email. It was not reasonable to require the employer to provide a trained autism facilitator to assist, as the employer had been entitled to rely on National Autistic Society advice that it was better to have someone known to R to assist him. Seeking best practice advice from a relevant charity or expert body will obviously be prudent, particularly where an employer is proposing a different adjustment from that sought by the individual. The tribunal also noted that the test had been reviewed by the employer’s Diversity and Engagement Team to ensure it was effective and did not disadvantage individuals in society.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills