Employer’s failure to make reasonable adjustments was a ‘continuing act’
In the case Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil the EAT had to consider whether a disability discrimination claim was brought within the three-month time limit.
Facts
Jamil struggled to travel the long distance to her office because of a disability. She asked her employer to transfer her to another office closer to home. The employer said there were no vacancies at this office and repeatedly refused her request but told Jamil there was a possibility the decision would be reviewed. The employer also maintained a ‘continuing interest list’ – a record of all employees who asked for an office transfer. Jamil claimed disabililty discrimination over the employer’s failure to make reasonable adjustments.
Tribunal and EAT
An employment tribunal held that the employer had discriminated against Jamil by requiring her to work in a specific office, and had failed to make a reasonable adjustment for her. The employer appealed.
Under the Equality Act 2010, a claimant can normally only bring a discrimination claim within three months of the employer’s discriminatory act or failure to act. If the Employment Appeal Tribunal (EAT) had held that the employer’s failure to make the reasonable adjustment was a one-off act, Jamil’s claim would have been out of time as the last refusal to transfer Jamil was more than three months prior to her lodging a claim. But the EAT found the employer’s refusals to make a reasonable adjustment amounted to an ‘ongoing failure’ and a ‘continuing act’. The appeal was dismissed.
Law
The EAT’s decision seems a departure from a 2009 Court of Appeal ruling in the case Matuszowicz v Kingston upon Hull City Council. The CA held the time limit for bringing a disability discrimination claim starts at the end of the period during which the employer might reasonably be expected to make the adjustment. The employer in the Jamil case argued its refusal to move the disabled employee to another office did not amount to a continuing state of affairs but was a ‘specific one-off’ act, from which point the three-month time limit should run. Surprisingly, the employer did not refer to Matuszowicz but relied on another case to argue that Jamil had to prove the employer had implemented a discriminatory policy.
The EATsaid there was no discriminatory policy but the real issue was whether the employer had failed in its duty to make a reasonable adjustment – and it decided it had. The employer’s failure to make a reasonable adjustment by moving Jamil to an office closer to her home was a ‘continuing act’ and the employer had told her it would keep its decision under review. This promise, coupled with the fact that it maintained a ‘continuing interest’ list, meant the employer had to consider its duty to make reasonable adjustments from the moment the duty arose until the duty was discharged, and this did not happen during Jamil’s employment. So the claim was within the time limit.
Comment
This decision does not sit comfortably with previous case law but it is an indication of how the law is developing in this area and provides another example of how employers can fall foul of disability discrimination laws. Although the CA decision is still technically binding, employers should be extremely wary about assuming an employer’s refusal to make a reasonable adjustment is a single act from which the time limit for bringing a claim will run. Ridiculously, the practical effect of extending this principle is that there will effectively be no time limits on claims where an employer refuses to agree to an adjustment.
Paul Mander is a partner and head of employment and Joseph Lappin is a trainee at Penningtons Manches
For more employment law
articles, visit HR-inform