Mr Matuszowicz was employed by Hull City Council as a teacher. He was disabled. From 2003 he worked at Hull prison. In his claim for disability discrimination, he contended that by August 2005 it was clear that working in the prison sector was unsuitable because of his disability. In October 2005 he transferred to lighter duties and from December 2005 went on gardening leave.
On 1 August 2006, he TUPE-transferred to Manchester City College. In October 2006, he presented a grievance to the council relating to matters occurring up to 31 July and in January 2007 he presented claims to the employment tribunal alleging discrimination in relation to the failure to transfer him to suitable employment and enforced transfer to unsuitable employment by another employer.
The council claimed that the claim was out of time. The tribunal held that the claim was in time as it extended over a period of time and was expressly stated to continue up to the time of the transfer. The Employment Appeals Tribunal (EAT) allowed the Council’s appeal. Mr Matuszowicz appealed to the Court of Appeal.
The Court of Appeal held that the claim was in time. The claim alleged that the need for suitable alternative work was clear from August 2005 and that from then on the council had failed to make suitable arrangements, in breach of the duty to make reasonable adjustments.
The Court of Appeal noted that there may be inadvertent omissions on the part of the employer which are breaches of the duty to make reasonable adjustments. This causes difficulties with regard to the time limit for bringing a claim. The claim must be made within three months of the date when the act complained of was done. A deliberate omission is treated as done when a person decides on it. A person is taken as having decided on an omission when either he does an act inconsistent with doing the omitted act, or when the period expires within which he might reasonably have been expected to do the omitted act.
Even if the employer is not deliberately failing to comply with the duty to make reasonable adjustments, it is to be treated as having decided upon it at the end of the period when it might reasonably have been expected to make such adjustments. That may be a date which is not readily apparent to either the employer or the employee. In this case, the omission to make reasonable adjustments continued until 1 August 2006 which meant that the claim was in time.
This decision provides important clarification regarding when time will start to run for the purposes of a claim that an employer has discriminated by failing to make reasonable adjustments. The decision makes it clear that a failure to make reasonable adjustments is to be treated as an omission for the purposes of determining when time starts to run.
However, the outcome will be unsatisfactory in many cases as it will be unclear to both employer and employee when the time limit for making a claim will expire. As the Court of Appeal notes, the effect is that an employer will have an interest in asserting that it could reasonably have been expected to act sooner, and the employee in asserting that it could not. The onus will be on employees to decide when something should have been done about the omission and bring the claim within three months of that date.
Mary Clarke, partner, DLA Piper