Although the law states that claimants should lodge their tribunal complaint within three months of the act they are complaining about, tribunals have a discretion to extend that period. In Kerr v Fife Council, the Employment Appeal Tribunal (EAT) held that, when exercising their discretion in a disability discrimination case about failure to make a reasonable adjustment, tribunals should bear in mind that the failure is more likely to be an omission rather than an act.
Ms Kerr, a primary school teacher, was diagnosed as suffering from Parkinson’s disease. The school initially allowed her to work a shift pattern that helped her to deal with her condition, but when this was altered, she went on sick leave and never returned. In November 2018, her union asked the council to “reclassify” the reason for her absence so that her pay would not be adversely affected but in February 2019 her pay was reduced to nil.
In mid-May 2019, Ms Kerr lodged a tribunal claim for disability discrimination on the basis that the council had failed to adjust her shift pattern and failed to re-classify the reason for her absences. The council argued that her claim was out of time under section 123(1)(a) of the Equality Act. A preliminary hearing was held to determine whether it was in time.
Section 123(1)(a) states that tribunal complaints must be lodged within a three-month period “starting with the date of the act to which the complaint relates”.
Section 123(3)(a) states that “conduct extending over a period is to be treated as done at the end of the period”.
Section 123(4)(a) states that if there is no evidence to the contrary, there is a failure to do something:
(a) when the person does an act inconsistent with doing it, or
(b) if there is no inconsistent act, then on the expiry of the period in which the person might reasonably have been expected to do it.
The tribunal agreed with the council that her claim was out of time. It found that a decision relating to her work pattern was made in 2018 and reclassifying the reason for her absence was made in November 2018. As she did not lodge her form until 14 May 2019, her claim was out of time. The tribunal also rejected the argument that the claims concerned “conduct extending over a period” under section 123(3)(a).
In addition, the judge refused to exercise his discretion to extend the primary time limit. This was because Ms Kerr’s union had told her in November 2018 that it would not proceed with a tribunal claim on her behalf. The council was also entitled to believe by November 2018 that things had been resolved.
Ms Kerr appealed, arguing that the tribunal had failed to find that she had shown an arguable case that a) the council’s failures to make reasonable adjustments in relation to her work pattern; and (b) reclassification of the reasons for her absence were allegations of “conduct extending over a period” continuing up to the date when the claim form was presented on 14 May 2019.
Allowing the appeal, the EAT held that the tribunal was wrong to treat Ms Kerr’s claim as one that related to an “act” rather than an omission or failure on the part of the council to make a reasonable adjustment to her shift pattern and reclassification of her absence. As a result, the tribunal had made an error of law by concluding that her complaints could not be about conduct extending over a period for the purposes of section 123(3)(a). It was also an error of law to assume that the time limit ran from the date when the obligation to make a reasonable adjustment applied.
Finally, the EAT held that the tribunal was wrong to conclude that by continuing to pay Ms Kerr on an un-reclassified basis the council had acted in a way that was inconsistent with making the adjustment sought in terms of section 123(4)(a). Instead of assessing the failure to reclassify her pay from her point of view, the judge merely recorded that she continued to receive pay from the council on an un-reclassified basis. This was also an error of law.
The EAT remitted the case to a differently constituted tribunal.
The case does not establish any new points of law as it is well established that a claim about a failure to make a reasonable adjustment is about an omission rather than an act. It does however serve as a reminder that when determining the time limit where the employer has failed to make a reasonable adjustment, it is important to identify when it would have been reasonable for them to have made it, taking into account any acts that the employer did which were inconsistent with making it. In this case, another tribunal may find that this was when the employer reduced her pay to nil in February 2019.