Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil
The duty for an employer to make reasonable adjustments arises when they become aware (or should reasonably be aware) that an employee has a disability (as set out in the Equality Act 2010). The duty aims to ensure that a disabled person has as far as reasonable the same access to everything which is involved in getting and doing a job as a person who is not disabled. The employer is only required to do what it is reasonable for them to do; many adjustments will not be particularly expensive. What is considered reasonable will depend on the size and nature of the employer.
If you are disabled and you can show that your employer failed to identify and/or implement reasonable adjustments then you can bring a claim in the Employment Tribunal. A failure to make reasonable adjustments counts and unlawful discrimination and the employer may be ordered to pay compensation as well as implement the reasonable adjustments.
A recent EAT case has considered whether a reasonable adjustment claim brought more than three months after the refusal to make the adjustment was out of time.
Ms Jamil worked at a Jobcentre Plus office located an hour and a half’s drive from her home. The claimant suffered from rheumatoid arthritis and therefore requested relocation to an office nearer her home but her request was refused. The letter refusing her request referred to the “possibility of review”. The employer kept a list described as a “continuing interest list” which noted all the employees who had requested relocation.
Ms Jamil brought a disability discrimination claim on the basis that the employer refusing the move was a failure to make a reasonable adjustment. The Respondent suggested that the claim was out of time as it had been brought more than three months after the decision to refuse the claimants request.
The EAT held that the potential for review of the employer’s decision was key. If the employer’s refusal had been final then the EAT held that the three month period would have started to run from the day of the refusal. However the “possibility of review” combined with the existence of the “continuing interest list” was enough to lead the EAT to conclude that there was an ongoing duty to consider relocating. It was held there was no single refusal but a “continuing act”.
Where there is a continuing act the three month limitation will start to run when the act comes to an end. In this case the act (to continue to review) was still ongoing and therefore the claimant’s claim had been brought in time.
In was found in a similar case (Matuszowicz v Kingston Upon Hull City Council) that a failure to make reasonable adjustments is an “omission” so that the time starts to run from the expiry of the period in which the employer might have reasonably been expected to make it. This differs from Jamil as Jobcentre Plus had admitted the duty was ongoing by putting the decision under review.
If you are avoiding decisions being held as “ongoing” for time limit purposes you should state that such decisions are final and binding. To hint at the possibility of a review and/or appeal of such a decision is to admit that the duty is ongoing.
If you have disabled employees and require assistance or advice in relation to reasonable adjustments and the extent to which you must make them do not hesitate to contact Michael lewin Solicitors Limited’s dedicated Employment Team for helpful and specialised legal advice.
Author: Crystal Bolton