Posted by Gemma Ospedale, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Failure to make reasonable adjustment did not start clock running
In Secretary of State for Work and Pensions (Job Centre Plus) v Jamil and others, the EAT has held that the employer’s refusal to transfer a disabled employee to an office closer to her home, which would have been a reasonable adjustment, was an on-going failure to make the adjustment and time did not start to run from the date upon which the initial decision was made, for the purposes of bringing a claim. Furthermore, the employer had specifically stated that it would keep the decision under review and it was therefore clear that the duty will continue until it was fulfilled.
This is an interesting decision which departs from previous case law which has held that a failure of this duty was an omission rather than a continuing act so that the time would start to run from the date upon which the failure initially took place rather than it being an on-going failure. Consequently, the claim was not brought out of time. Previous case law has gone even further, saying that the 3 month time limit started to run when the period within which the employer might reasonably have been expected to make the relevant adjustment expired.
In this case, the employer kept a list of employees who expressed an interest in transferring to a different office so that, if a vacancy arose, they could be notified. They told the Claimant that there was no vacancy in the office to which she wanted to be transferred. However the Tribunal found that the real reason why she was not transferred was not that there were no vacancies, but that her husband worked in the same office. The fact that the employer had written to her saying that the decision not to allow her to transfer might be reviewed, and that it kept a list of vacancies, was evidence that the failure to make the adjustment was an on-going one rather than a specific one-off act.
In dismissing the employer’s appeal, the EAT considered the case law regarding continuing acts but interestingly did not refer to a couple of the leading cases in this regard. The leading case in this is a Court of Appeal decision rather than an EAT decision, Matuszowicz v Kingston upon Hull City Council, a 2009 Court of Appeal decision which was the one which held that the time limit started to run on the expiry of the period during which the employer might reasonably have been expected to make the adjustment. Consequently this remains current case law unless there is an appeal in the instant case which overturns this decision.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222
It pays to employ the right employment solicitor