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Court of Appeal, Feb 2009
This case decides that even where failure to make a reasonable adjustment in employment is continuing and non-deliberate, there is a cut-off point for when a claim can be made. The court discusses when the time limit runs from. One judge comments that:
"claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer's attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission".
He also suggests that tribunals might be "sympathetic" in considering whether to extend the time limit where the rule creates difficulty for claimants.
S.68(1) DDA 1995 defines "act" as including a "deliberate omission".
DDA 1995, Schedule 3, paragraph 3
(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) For the purposes of sub-paragraph (1)
(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission
The claimant argued there was a continuing omission up to 1st August 2006 when the relevant activities of the Council were transferred. If the time limit for claiming ran from that date, his claim was indeed in time. The Council argued that the time limit for the claim ran from an earlier date, so that the claim was out of time.
Held: Even where an omission - such as failure to comply with the reasonable adjustment duty - is not deliberate, DDA 1995 Sch 3 para 3(4) applies to set a time from which the (normally) three month period for making a claim starts to run. So for a non-deliberate failure, unless there is an "act inconsistent with" making the adjustment, time will start to run from the end of the period within which the employer might reasonably have been expected to make the adjustment if it was to be made. (See yellow box for the wording of the legislation.)
In this particular case, on the assertions made by the parties there was no date before 1 August 2006 from which the time could be taken to have run, so the employee was not out of time.
The Court acknowledged that its decision might cause difficulties, but these could be alleviated:
"Mr Toms submitted that it would be highly unsatisfactory to construe the paragraph as imposing a start date for the three month period at a time which the employer and the employee might well not realise that it had occurred, as might be the case under paragraph 3(4)(b), and that it was also unsatisfactory to impose a starting date for the three month period at a time when the employment was still continuing and when the employer might well still be trying, even if not as diligently as it should, to make the necessary adjustments, and the employee might be happy to go along with that. I see some force in that but it seems to me that it is part of the policy of the legislation in the area of discrimination to impose relatively early cut off dates for claims of discrimination, many of which are brought at a time when the employment relationship is still subsisting. Moreover, the issue of uncertainty, which I accept is real and may be more substantial in this legislation than in other anti-discrimination legislation, is considerably alleviated by the provisions of paragraph 3(2) which creates the opportunity for an extension of time if it would be just and equitable. That provision is capable of accommodating situations in which the employee does not realise that the start date has occurred or, for example, the employer's decision has not been communicated to him. It could also avoid a problem which might otherwise arise if the employer were to seek to lull the employee into a false sense of security by professing to continue to consider what adjustments it ought reasonably to make, at a time long after the moment has arrived under paragraph 3(4)(b) when the employee is entitled to make a claim and time has started to run for the making of such a claim."
Thus the time limit will sometimes run from when the employer might reasonably have been expected to make the adjustment, and this can lead to odd results as the employer may want that date as early as possible in order for the tribunal claim to be out of time. The Court of Appeal acknowledged:
"It is ironical that, in the context of time limits, it would be in the interests of the [employer] to allege that it might reasonably have been expected to have dealt with the position much earlier than it actually did, whereas it would be in the [claimant's] interests to assert that it would have taken as long as it in reality did, so as not to give rise to an earlier date as the starting date under Schedule 3 paragraph 3."
The employee's complaint here alleged that the need for alternative suitable work was clear from August 2005 and that from then on the employer failed to make suitable arrangements. The court (at para 10) saw this formulation as fitting with DDA s.4A(3)(b), the 'lack of knowledge' defence. The employer was not under the reasonable adjustment duty until it knew, or reasonably should have known, that the appellant, as a disabled person, was, or was likely to be, placed at a substantial disadvantage.
Lord Justice Sedley agreed with the main judgment (by Lloyd LJ), but went on to make some additional comments on the practical implications of the decision:
"The point of general importance which emerges from his judgment, and is worth stressing, is that the effect - unfortunately not a readily obvious one - of paragraph 3 of Sch 3 to the 1995 Act is to eliminate continuing omissions from the computation of time by deeming them to be acts committed at a notional moment. The evident purpose is to prevent a situation of neglect from dragging on indefinitely, and to do this, where no overtly inconsistent act has set time running, by putting the onus on the claimant to decide when something should have been done about the omission and to bring his or her claim within 3 months of that date.
"For obvious reasons this can create very real difficulties for claimants and their advisers. But there are at least two ways in which the problem may be eased.
"One is that claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer's attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission.
"The other is that, when deciding whether to enlarge time under paragraph 3(2), tribunals can be expected to have sympathetic regard to the difficulty paragraph 3(4)(b) will create for some claimants. As Lloyd LJ points out, its forensic effect is to give the employer an interest in asserting that it could reasonably have been expected to act sooner, perhaps much sooner, than it did, and the employee in asserting the contrary. Both contentions will demand a measure of poker-faced insincerity which only a lawyer could understand or a casuist forgive."
The full decision is at www.bailii.org/ew/cases/EWCA/Civ/2009/22.html
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