Charles Pigott considers the lessons of a recent ruling on the third element of the duty to make adjustments.
According to the decision from the Employment Appeal Tribunal in Mallon v AECOM Ltd (DISABILITY DISCRIMINATION)  UKEAT 0175_20_2002, the third requirement (relating to auxiliary aids) compromised in the duty to make reasonable adjustments can often be overlooked. The first two requirements, triggered by the application of a provision criterion or practice (PCP) and the physical features of premises respectively, are relatively familiar. However the third requirement is not encountered so frequently, at least in employment case law.
This third element of the duty to make adjustments is engaged where a disabled person “would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”. A duty is then imposed, for example on an employer or service provider, “to take such steps as it is reasonable to have to take to provide the auxiliary aid.” Auxiliary aids are defined in the Equality Act as including auxiliary services.
The duty in relation to auxiliary aids overlaps to some extent with the first requirement (ie the provision of an auxiliary aid may be a reasonable adjustment where a PCP puts a disabled person at a particular disadvantage). Perhaps it is that overlap which can lead to auxiliary aids being overlooked as a free-standing requirement. That was one reason why the EAT in this latest case has overturned a decision of the employment tribunal to strike out a case brought by a claimant with dyspraxia, who argued that he was disadvantaged by having to submit a job application on line. While not pre-judging the merits of his claim, the EAT questioned whether the tribunal should have analysed the claim as a request for an auxiliary service (ie an alternative way of submitting an application form) rather than in terms of the application of a PCP (ie that all job applications had to be made on-line).
In this context the EAT commented as follows:
“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.”
This particular case was submitted to a new tribunal, and it may still end up being struck out as the claimant has already made a number of similar claims, 29 of which he is reported to have withdrawn.
More recently the auxiliary aid element of the duty to make adjustments has been given further prominence by a ruling against the Government in a judicial review application which challenged the absence of British sign language interpreters at two important COVID briefings last year. The claim in Rowley, R (On the Application Of) v Minister for the Cabinet Office  EWHC 2108 was brought against the Cabinet Office in its capacity as a service provider, the service in this case being the provision of information about the pandemic.
The heart of that case was about the accessibility the information provided about the pandemic for deaf people, but similar principles would apply when an employer supplies work-related information. Indeed section 20(6) Equality Act spells out that when the first or third requirement relates to the provision of information, the steps that the duty requires to be taken include the provision of that information in an accessible format. That, as the Equality and Human Rights Code of Practice makes clear, can extend to the provision of readers or interpreters.