Last act

Matuszowicz v Kingston upon Hull City Council

Claimants must lodge their tribunal complaint within a specific time period starting from the date of the last act or omission they want to complain about. In Matuszowicz v Kingston upon Hull City Council (IRLR 2009, 288), the Court of Appeal said that the failure to make a reasonable adjustment was a continuing omission and that the time limit would start from the date that a reasonable employer would take to make that adjustment.

Basic facts

Mr Matuszowicz, whose right arm was amputated above the elbow, was deemed to be disabled within the meaning of the Disability Discrimination Act 1995 (DDA).

He started work for Hull City Council in September 2003 as a teacher at Hull Prison, but because of his disability, he had a problem coping with the heavy doors. He was transferred elsewhere a couple of times, but ended up on gardening leave in December 2005. On 1 August 2006 his job was transferred to Manchester City College under TUPE (the Transfer of Undertakings (Protection of Employment) Regulations).

In January 2007, Mr Matuszowicz lodged a tribunal claim against the council, alleging that it had failed to transfer him to suitable alternative work, contrary to the DDA, although it had been obvious from August 2005 that working in the prison sector was unsuitable for him.

His employer argued that as the complaints on which Mr Matuszowicz was relying related to events that had happened in 2005, his claim was out of time and should be struck out.

Tribunal and EAT decisions

The employment tribunal held that the claim was in time because the failure to make reasonable adjustments was a continuing act, extending over a period of time up until the date of the TUPE transfer.

The council then appealed to the EAT, which held that the failure to make a reasonable adjustment was a one-off omission which had taken place in August 2005, with the result that the claim was out of time.

Court of Appeal decision

Although the Court of Appeal agreed with the tribunal that the claim was not out of time, it said that the failure to make reasonable adjustments was an omission, not an act.

It reasoned that the legislation takes as its starting point the time when the relevant “act” is "done". So if the omission was deliberate then time starts running from the point when the person decided not to act.

If the omission is not deliberate, however, there are two alternatives under the DDA for deciding when time starts to run. The first is when the person does something inconsistent with the omission (whether or not they realise they have). The person will then be treated as having made a deliberate omission at that point and that is therefore when time starts to run.

The second option is not so straightforward. This is when the person does not do anything inconsistent with the omission to make a reasonable adjustment. In that circumstance when could the employer have reasonably been expected to have made the adjustment? The Court of Appeal said that, in these circumstances, the date is an artificial one and is therefore unlikely to be “readily apparent either to employer or to employee”.

It held that it is for tribunals to decide how long a reasonable employer, under a duty to make an adjustment and intending to make one, would take to make that adjustment. The time limit would start when that period expired.

The Court of Appeal decided, in this case, that the omission continued until 1 August 2006 which meant the claim was in time. It therefore allowed the appeal and remitted it to the employment tribunal to consider the substantive claim.