Widening the risk for employers who fail to make reasonable adjustments?
Author: Antonia Blackwell
The potential for employers to be exposed to disability discrimination claims arising from a failure to make reasonable adjustments for their disabled employees has just been increased, thanks to a decision of the Employment Appeal Tribunal.
The legal position
Under the Equality Act 2010 ("Act") an employer has a duty to make reasonable adjustments where any of its practices place a disabled employee at a substantial disadvantage compared with non disabled employees. A failure to comply with the duty amounts to discrimination on the grounds of disability.
Usually, a disability discrimination claim must be submitted to an Employment Tribunal within 3 months of the act or omission complained about. However, where the act or omission extends over a period of time, the 3 month time limit does not start to run until the end of that period.
According to previous case law, a failure to make reasonable adjustments was an omission and not a continuing act, and therefore the time for bringing a claim for breach of that duty started to run when the employer took the decision not to make the adjustment, or at the very latest from the end of the period in which the employer might reasonably have been expected to make the adjustment.
However, in Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and others the Employment Appeal Tribunal ("EAT") took a different approach. 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.
It seems that the employer's acknowledgment that there could be a review of the decision not to transfer the employee influenced the outcome of this case. However, recognising the continuing nature of the duty does seem a more logical approach than there being a single "cut off" date. Although this decision does not overturn the previous Court of Appeal decision in the area concerning time limits for reasonable adjustment claims, it does potentially provide a route for disabled employees to bring such claims in the Tribunal.