Failure to Make Reasonable Adjustments was a Continuing Act
In the recent case of Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the EAT held that an employer’s failure to make reasonable adjustments was a continuing act and not a one-off omission meaning that the three month time limit to bring a claim did not start running from the date of the initial failure. Under the Equality Act 2010, if a disabled person is put at a substantial disadvantage as a result of a provision, practice or criterion applied by the employer, the employer is under a legal obligation to make reasonable adjustments for that person. A failure to do this amounts to discrimination. Discrimination claims must usually be submitted to the employment tribunal within three months starting with the date of the act or omission to which the complaint relates. Previous case law suggested that a failure to make reasonable adjustments is an 'omission' even if it is seemingly ongoing and therefore the three month time limit begins to run from the date of the initial failure (Matuszowicz v Kingston Upon Hull City Council (2009)). In the present case, Ms Jamil developed a disability which made it difficult for her to get to work and requested that she transfer to another office which was a lot closer to her home. Her employer refused on the basis that there were no vacancies in this office but agreed to keep the situation under review. The employer also had a 'continuing interest list' on which employees interest in inter-office transfers would be recorded in case vacancies arose at that office in the future. Ms Jamil bought a discrimination claim more than three months after her request had been refused and her employer sought to argue that this claim was out of time.
The tribunal and the EAT found that the failure to allow Ms Jamil to move offices was not a one-off incident but a continuing act. Further, the employer had clearly recognised this as it had itself stated that the situation would be kept under review.
Whilst it seems the fairer approach, this decision is hard to reconcile with Matuszowicz which was a Court of Appeal decision and, as such, remains good law. Jamil could potentially be distinguished on the basis that the employer had, in that case, clearly recognised that its duty was ongoing by agreeing to keep the situation under review. Louise Merrell, Clarkslegal LLP Tel: 020 7539 8082 Email: LMerrell@clarkslegal.LLP