A dyspraxic jobseeker who had a discrimination claim struck out after the tribunal said he had launched more than 30 “vexatious” disability discrimination claims in the space of three years will have the decision reconsidered, the Employment Appeal Tribunal (EAT) has said.
The EAT remitted a 2019 ruling by the East London Hearing Centre that found Christian Mallon was not discriminated against by infrastructure consultancy firm Aecom when applying for a role at the company.
Mallon had argued that his dyspraxia – also referred to as developmental coordination disorder – meant he was unable to complete an online application, and the company failed to make reasonable adjustments for him. Mallon claimed he was unable to interact with online forms, password characters and drop-down menus and requested that Aecom allow him to submit an oral application.
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However, despite Aecom’s requests for Mallon to outline what was problematic and how they could assist, he did not offer any details of his disability and insisted on an oral application.
The initial employment tribunal (ET) also noted Mallon had lost multiple tribunal claims against various employers between 2017 and 2019 – including one in which he was ordered to pay the employer costs of nearly £4,000.
Judge Burgher, who ruled on the initial ET claim, said that because Mallon had previous claims relating to similar matters against recruitment agencies and other organisations that were either dismissed or withdrawn of his own volition, this was “one of the rare cases” where the exception to the rule that discrimination clams should not be struck out applied.
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He added this was indicative of a “lack of substance” to those claims and “no credible basis” to maintain them.
However, the EAT said despite the number of previous claims made by the claimant, it was not possible without further investigation to determine on a summary basis that Mallon’s claim – that he was put at a substantial disadvantage by being asked to complete an online application – was false. Nor was it possible to determine on a summary basis that Mallon already knew the claim was false.
As such, the EAT ruled that the case would be heard again by a different ET judge.
The initial East London ET heard that, on 5 June 2017, a fair employment tribunal in Northern Ireland threw out his claim of disability discrimination against the Department of Agriculture, Environment and Rural Affairs (DAERA) when he was not shortlisted or interviewed for a position. Mallon argued that he couldn’t complete the online application and had difficulty clicking on the activation button to begin his online application in an email. The tribunal did not accept that Mallon “was not familiar with the concept of clicking a blue link on his screen” and found his evidence to be “at best confused, and at worst misleading”.
The tribunal heard that, following this claim, Mallon withdrew 17 separate claims because of his “lack of knowledge of the requirements to advance a claim”. But Burgher said he found this “hard to believe” given the detailed findings of the DAERA judgment.
Burgher then brought Mallon’s claim against John Lee Recruitment in August 2018 to the tribunal’s attention, in which he was ordered to pay 50 per cent of the costs, amounting to £3,995, when he withdrew his claim. Mallon then withdrew a further 12 remaining claims from 2018-19 “as a result of the costs judgment” in the John Lee Recruitment case.
Following this, in March 2019, Mallon entered into another employment tribunal for disability discrimination against recruitment agency MBA Notts after he failed to be shortlisted for several jobs. During the hearing, employment judge R Clark pointed out that Mallon’s CV demonstrated he was highly educated and had held a number of senior positions, and that it disclosed his disability and detailed how dyspraxia may manifest.
However, Clark struck out Mallon’s claim as he was rejected for having no experience for the roles he applied for and his claim had “little reasonable prospect of success”.
Jules Quinn, partner at King & Spalding International, said the case highlights how employers could avoid finding themselves in a similar situation to the organisations mentioned above by conducting background checks on potential candidates.
“It is very easy for an employer to conduct a background check to determine what, if any, tribunal claims or cases a job applicant has brought against previous employers,” said Quinn.
But she added that acting on any findings also risked putting the employer on tricky legal ground. While “careless hiring practices” can leave an organisation exposed, Quinn also warned that taking any action against a candidate, such as not shortlisting them for an interview, could amount to victimisation.