The Court of Appeal has held in Abertawe Bro Morgannwg University v Morgan that a tribunal does not need to be satisfied that there is good reason for the delay before finding it just and equitable to extend time in a claimant's favour.
Ms Morgan suffered from a depressive illness which caused her to be absent from work for all but two days in the last 17 months of her employment (this terminated in December 2011). She commenced tribunal proceedings in March 2012 for disability discrimination and unfair dismissal. The tribunal dismissed some of her claims, but upheld her claims of disability harassment, and found that there had been a failure to make reasonable adjustments. The tribunal found that it was just and equitable to allow the claims to be brought after the end of the three-month period.
The Employment Appeal Tribunal (EAT) disagreed. It found that the claim for failure to make reasonable adjustments could not stand for the period from August 2011 (when a letter was received from occupational health that Ms Morgan was unfit to work in any capacity from that time).
The Court upheld the tribunal's decision to extend time. It held that in a complaint about an omission (e.g. a failure to make reasonable adjustments) the time limit does not run from the date when the breach of duty occurred. Time begins to run at the end of the period in which the respondent might reasonably have been expected to comply with the relevant duty, and should be assessed from the claimant's point of view. A claimant might be unfairly prejudiced if the time to bring a claim ran from the date the employer has a duty to make reasonable adjustments, as they might reasonably believe that the employer was taking steps to seek to address the relevant disadvantage and the employer might be doing nothing at all.
As to the length of the period in which an extension would be just and equitable, factors to consider include the length of, and reasons for, the delay and whether the delay has prejudiced the respondent. There was no requirement for the tribunal to be satisfied that there was a good reason for the delay before it could conclude that it was just and equitable to extend time in the claimant's favour.
Take note: Following the decision in Morgan employers will have to be aware that although the duty to make reasonable adjustments will start "as soon as the employer is able to take steps which it is reasonable the for the employer to have to take to avoid the relevant disadvantage", this will not be the same date as that where time begins to run for the purposes of bringing a claim. The duty to make reasonable adjustments is an ongoing one and must be taken seriously.
This article is taken from HR Law - May 2018.