Whenever an employer operates a ‘Provision, Criteria or Practice’ (PCP) which puts a disabled person at a substantial disadvantage when compared to those who are not disabled, a duty to take reasonable steps to avoid that disadvantage engages. If the employer fails in this duty, then it unlawfully discriminates against the disabled employee. See Sections 20 & 21 Equality Act 2010.
It is well established that an employer’s duty to make reasonable adjustments is wide, including such things as:
- Adjustments to premises
- Providing information in accessible formats
- Allocating duties to others
- Transfer to an existing vacancy
- Varying hours of work
- Assigning a different place of work
- Allowing a period of disability leave (e.g. for treatment)
- Adjusting redundancy criteria
See the Equality & Human Rights Commission Statutory Code of Practice.
An employee who feels that their employer has failed in this duty may take an Employment Tribunal claim. However, they must do so within 3 months of the date of the employer’s failure – unless it is ‘just and equitable’ to extend time (see Section 123 Equality Act 2010).
When an employer decides not to make an adjustment, does its decision trigger the time limitation clock, or is the refusal to make the adjustment a ‘continuing act’ so that the time limitation period does not expire until the adjustment is made (or employment ends)?
In Jobcentre Plus v Jamil the employer refused to transfer Ms Jamil from its premises in Ealing to other premises in Uxbridge, to assist her with problems getting to work on time. Ms Jamil’s tardiness was related to her arthritis: she was slow to ‘get moving’ in the mornings and was fatigued. The employer adopted a policy to review its decision in the future. Ms Jamil took a claim in the Employment Tribunal but did so more than 3 months after the employer’s refusal.
The Employment Appeal Tribunal held that since the duty to make reasonable adjustments was a continuing duty in relation to which the employer failed to comply on each and every day after its decision, this was a ‘continuing state of affairs’ and time limitation did not run from the date of the decision: so long as the failure persisted it effectively began to run afresh on each day of the employer’s failure.
This decision is a useful reminder to employers of just how wide and continuing the duty to make reasonable adjustments is.