Humphries v Chevler Packaging Limited, EAT 24 July 2006
Mrs Humphries was a full-time machine operator/packer. After experiencing pain in her right arm and shoulder, she went on sick leave. On her return, her duties were varied and her hours reduced, but this did not alleviate the pain. She was offered alternative work as a cleaner at a lower rate of pay (as there was no other suitable employment), but she rejected the role. She went on sick leave on 14 November 2003 and never returned to work.
On 11 April 2005, Chevler’s solicitors wrote a letter stating that the only alternative job was the cleaning one, which was still open to her. She viewed this act as the “final straw” and resigned on 16 May. She brought claims for disability discrimination and unfair constructive dismissal on 15 November.
At a preliminary hearing, the tribunal said the claim was out of time. Time had started to run from 11 April, the date Chevler made it clear no further adjustments could be made. It rejected Humphries’ argument that there was a “continuing failure” on Chevler’s part to make reasonable adjustments and held that a failure to act is a non-act or, in other words, an omission. The tribunal also held it was not just and equitable to extend time. Humphries appealed.
The appeal was dismissed. The Employment Appeal Tribunal (EAT) agreed that a failure to make adjustments is an omission rather than an act or continuing act, and Chevler was not doing any act, continuing or otherwise. The date of the last act complained of was Chevler’s letter of 11 April, and the tribunal was right to find that the claim was out of time.
The tribunal found that the case had little merit and that the cost implications of a full hearing outweighed Humphries being deprived of the chance of an award of damages.
The decision clearly demonstrates that care needs to be taken to ensure time limits for commencing claims are complied with, otherwise the right to pursue a claim may be lost. Also, it is for the claimant to show why time should be extended and, as the EAT stated, the exercise of discretion is the exception rather than the rule.