EAT Disability Discrimination – Reasonable adjustments – C had a dormant condition of rheumatoid arthritis, which relapsed whilst she was in the employment of R. Her job involved working in a Job centre in Ealing some 1 hour and 20 minutes from home. She had childcare commitments. The added effect of her arthritis, making her slow to get moving in the morning and being fatiguing, made her repeatedly late for work. She asked for a job closer to home. The Employment Tribunal found that she had a disability, that the employer applied a PCP of requiring her to work at Ealing, and that this caused her a substantial disadvantage compared to those who did not suffer her disability. The employer had repeatedly refused a transfer to nearer her home. The ET thought that she had established a prima facie case that such a transfer would potentially be a reasonable adjustment. The employer provided no clear evidence why it had not made it. The ET however went on to say that there had been a refusal to transfer her more than 3 months prior to her ET1, although there was a policy to keep this under review; and also found that the employer had decided it did not want her to work at the branch close to home. The employer argued that this last contention was not advanced before the ET, which had decided it without hearing submissions from R, and that there was no evidence for it. This was rejected on the facts. It also argued that the refusal meant there was no continuing act/state of affairs, as the ET found; and a policy which was not itself discriminatory ((a) keeping the position under review; (b) not wanting her to work nearer home) was not intrinsically discriminatory, yet Cast v Croydon College required there to be a discriminatory policy for there to be a continuing act to bring allegations of disability discrimination with time. This was rejected; the focus should be on the law as derived from statute, and the ET judgment read as a whole made permissible findings.
Langstaff P J
 UKEAT 0097 – 13 – 2611
England and Wales
Updated: 01 December 2021; Ref: scu.522360