The appellant was employed as a teacher. He became disabled on losing part of his arm. He had been located at a prison and was unable to manage the heavy doors. He complained that the respondent had not made reasonable adjustments by transferring him to other work. The respondent argued and the EAT agreed that his complaint was out of time, being one act and not a continuing one.
Held: The employee’s appeal succeeded. The court considered how it might find the date for starting the calculation: ‘in the context of this legislation and of the duty to make reasonable adjustments, even if the employer was not deliberately failing to comply with the duty, and the omission to comply with it was due to lack of diligence, or competence, or any reason other than conscious refusal, it is to be treated as having decided upon it at what is in one sense an artificial date. Certainly it may not be a date that is readily apparent either to employer or to employee. The date is imposed for the purposes of starting time running under the enforcement provisions of the 1995 Act.’ and ‘a failure to make adjustments, at any rate in this type of case, is an omission, not an act. There may of course be positive acts that are inconsistent with the duty but the failure to make the adjustments is in its nature an omission. ‘
This was in its nature a continuing omission, continuing until August 2006.
Sedley LJ said: ‘the effect – unfortunately not a readily obvious one – of paragraph 3 of Sch 3 to the 1995 Act is to eliminate continuing omissions from the computation of time by deeming them to be acts committed at a notional moment. The evident purpose is to prevent a situation of neglect from dragging on indefinitely, and to do this, where no overtly inconsistent act has set time running, by putting the onus on the claimant to decide when something should have been done about the omission and to bring his or her claim within 3 months of that date.
For obvious reasons this can create very real difficulties for claimants and their advisers. But there are at least two ways in which the problem may be eased.
One is that claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission.’
Sedley, Jacob, Lloyd LJJ
[2009] EWCA Civ 22, [2009] 3 All ER 685, [2009] IRLR 288
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
Cited – Spence v Intype Libra Ltd EAT 27-Apr-2007
EAT The appellant who was disabled was dismissed after a long absence from work. He made various claims under the Disability Discrimination Act 1995, all of which were rejected. He contended that the failure to . .
Appeal from – Kingston Upon Hull City Council v Matuszowicz EAT 28-Jan-2008
EAT JURISDICTIONAL POINTS: Claim in time and effective date of termination
Having correctly held that three of the Claimant’s four DDA claims were out of time, parity of reasoning made the fourth out of time . .
Cited – Humphries v Chevler Packaging Ltd EAT 24-Jul-2006
EAT The Appellant left her employment and claimed (a) unfair constructive dismissal and (b) disability discrimination. On a preliminary point the ET held the disability discrimination claim was out of time as . .
Cited – Barclays Bank Plc v Kapur HL 1991
The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service . .
Cited by:
Cited – Armstrong v Chief Constable Of the Police Service for Northern Ireland NIIT 3-Aug-2009
Claims for direct and indirect sex discrimination dismissed. . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Leading Case
Updated: 31 October 2021; Ref: scu.282605