Sunday, 3 August 2014
Failure to Make Reasonable Adjustments and a time limit exception Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT")
As most wizened employment lawyers will tell you, the time limit for hurling in a tribunal claim for Failure to Make Reasonable Adjustments in the case of omissions under the Equality Act is set out under S.123(3)(4) EqA which says that failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person is to be taken to decide on failure to do something:
When they do an act inconsistent with doing it; or
if they do no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.
So unless there is either evidence of when a decision was taken not to make the adjustment or an act of the employer inconsistent with making the adjustment, the normal three month time limit within which to bring a claim will start from when the employer could reasonably have been expected to made the adjustment.
Some ingenious lawyers however, have forced a wedge into this previously closed door. In Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT") Ms Jamil became disabled with rheumatoid arthritis which made it difficult for her to get to work since she lived over an hour away. She therefore requested a transfer to an office closer to her home. However, this was refused as there was no vacancy at a closer office. Ms Jamil brought a disability discrimination claim alleging a failure to make a reasonable adjustment but her employer argued that the claim was out of time as more than 3 months had passed since her request had been refused.
Both the Employment Tribunal and the EAT found that the claim was in time on the basis that there was a continuing nature to the duty to make reasonable adjustments in this case. In particular, they took into account that the employer itself maintained a "continuing interest list" on which it recorded employees' interest in transferring to a different office should a vacancy arise, to which they had added Ms Jamil's name, and had also written to her to say that there was a possibility of a review of the decision in the future. This persuaded the EAT that the employer was constantly monitoring the situation and there was therefore no single once and for all refusal - the employer was obliged to consider throughout the remaining period of employment how the duty to make reasonable adjustments should be discharged.
The magic words here are clearly 'no single once and for all refusal'.