When does the 3 month time limit start in reasonable adjustment cases?
In Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil the EAT considered whether a reasonable adjustments claim, brought more than three months after the employer’s refusal to make the adjustment, was out of time.
Ms Jamil had rheumatoid arthritis and worked at a Jobcentre Plus office an hour and a half’s drive from her home. She requested relocation to an office nearer her home, but this was refused. The refusal letter made reference to the possibility of review. The employer also maintained a list described as a “continuing interest list”, which noted employees who had requested relocation.
Ms Jamil claimed that refusing the move was a failure to make a reasonable adjustment and brought a disability discrimination claim. Jobcentre Plus argued that the claim was out of time, as it had been brought more than three months after their decision.
The potential for review of the employer’s decision was key. Had the employer’s refusal been final, then the three month period would have started to run from the day of the refusal. However, in this case, the possibility of review combined with the existence of the list was enough to lead the EAT to conclude that there was no single refusal but a “continuing act” – an ongoing duty to consider relocating.
Where there is a continuing act extending over a period, the three month period will start to run when that period comes to an end. In this case, that act was still ongoing and, therefore, Ms Jamil’s claim had been brought in time.
In Matuszowicz v Kingston Upon Hull City Council it was found that a failure to make a reasonable adjustment is an “omission” and not a “continuing act” – so that the time limit starts from the expiry of the period within which the employer might reasonably have been expected to make the adjustment. As a Court of Appeal decision this remains good law, despite the different approach taken in Jamil. Jamil can, however, perhaps be distinguished on the basis that the employer had admitted that the duty to make reasonable adjustments was ongoing by agreeing to keep the decision under review.
If seeking to avoid decisions being characterised as “on-going” for time limit purposes, employers should state that such decisions are final and binding, without hinting at the possibility of a review or appeal.
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