EAT Disability Discrimination : Reasonable Adjustments – EXTENSION OF TIME: JUST AND EQUITABLE
PERVERSITY
An employee, who suffered from the effects of a significant depressive illness, was subject to a PCP that she should attend work in her usual post. In deciding that an employer had failed in its duty to make reasonable adjustments in the light of her agreed disability, by failing to redeploy her to an alternative post ‘in line with’ the advice of its Occupational Health doctor, the ET erred, since as to a period before August 2011 it did not have any clear idea what features such a job would have to have to avoid the PCP causing substantial disadvantage to the claimant, and though it asked whether the adjustment would have done so, conspicuously failed to answer that question. (Though it thought that the failure to make the adjustment had caused additional difficulty to the Claimant, this did not answer the question whether to make it would have avoided the disadvantage in the first place). The answer was not self-evident. As to the period after August 2011 it wrongly assumed that the doctor was advising that she could work if only some adjustments were made in connection with a particular alternative post, whereas he was in fact saying (at the time) that she could not work at all and would only be able to do so if her condition improved. This same material misconception of fact vitiated a finding of discrimination related to disability.
Two findings of harassment were made which were also subject of appeal. The incidents giving rise to them arose in one case some three years before the claim was made. It was unclear whether the tribunal, when accepting in relation to that case that the approach of a manger in a meeting had caused the proscribed ‘environment’ had meant to say that it caused that during the meeting, but not more broadly, and since it did not refer to any evidence of ongoing consequence or perpetuated difficult atmosphere probably gave too wide a scope to ‘environment’ which refers to an ongoing state of affairs and not a short-lived one-off incident (Weeks v Newham College applied). The appeal in relation to the other finding was rejected.
Finally, the ET had erred in its exercise of discretion to extend time on the basis that it was just and equitable to do so: each allegation was separate, and should have been considered separately rather than globally; the ET had not considered a central question – the claimant’s reason in each case for being out of time ; and in reaching a decision that the matter was ‘finely balanced’, but that what tipped the balance was that otherwise the claimant would be denied well-founded claims, had taken into account a view of the merits of the claims that was (after this appeal) shown to be erroneous.
The appeal was allowed; the decision was in part reversed and the balance, including the issue of extension of time in all cases, remitted for further submissions and consideration in the light of the judgment.
Langstaff J P
[2014] UKEAT 0305 – 13 – 1802
Bailii
England and Wales
Employment, Discrimination
Updated: 30 November 2021; Ref: scu.521649
