The potential for employers to be exposed to disability discrimination claims from a failure to make reasonable adjustments has been increased thanks to a legal ruling, a lawyer has argued. Nic Paton reports.
Antonia Blackwell, an employment lawyer with law firm Shoosmiths, has argued that the decision of the Employment Appeal Tribunal (EAT) in The Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil & Ors has brought into question a previous time limit for complaints about a lack of adjustment to be taken to a tribunal.
Under the Equality Act 2010, 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, with a failure to do so normally amounting to discrimination.
A claim must be submitted to a tribunal within three months of the act or omission complained about or, if the omission has happened over a period of time, three months from the end of that period.
According to Blackwell, this has meant that under previous case law a failure to make reasonable adjustments has been seen as “an omission and not a continuing act”.
However, in a case between Jobcentre Plus and a worker with rheumatoid arthritis called Ms Jamil, the EAT has taken a different approach.
Ms Jamil’s arthritis had made it difficult for her to get to work and she had requested a transfer to an office closer to her home. This was refused as there was no vacancy at a closer office, and Ms Jamil brought a claim alleging a failure to make a reasonable adjustment.
However, her employer argued the claim was out of time as more than three months had passed since her request had been refused.
Both the original tribunal and the EAT, however, found the claim was in time on the basis that “there was a continuing nature to the duty to make reasonable adjustments in this case”.
The employer had maintained a “continuing interest” list, on which it recorded the interest of employees in transferring to a different office, to which Ms Jamil’s name had been added. It had also written to her to say 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,” Blackwell said.
The ramification of this for employers lies in “the continuing nature” of their duty to make adjustments, Blackwell argued: “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.”