Matuszowicz v Kingston Upon Hull City Council

A failure to make reasonable adjustments is an omission rather than a continuing act. Under paragraph 3 of Schedule 3 to the Disability Discrimination Act 1995, even an inadvertent omission is deemed to have been decided upon when the employer acts inconsistently with the omitted step or when the reasonable period for taking it expires. Time then runs from that notional date.

The claimant may plead that an omission continued until a specified date. An earlier deemed date requires a proper factual basis. The just and equitable jurisdiction can address uncertainty about when the notional date occurred, including cases where the employer’s decision was not communicated.

The appellant, a disabled teacher, alleged that the respondent council failed to transfer him from unsuitable prison work to suitable alternative employment. He maintained that the need for adjustment was clear by August 2005 and that the omission continued until his employment transferred to another employer on 1 August 2006.

The Employment Tribunal held that this complaint was in time. The Employment Appeal Tribunal, UKEAT/0409/07, allowed the council’s appeal and treated the complaint as concerning a one-off omission in August 2005.

The appellant appealed against that ruling. The council sought permission to cross-appeal on whether the transfer of employment meant that it was the correct respondent. The central issue was when time began to run for a claim based on an omission to make reasonable adjustments.

1. Appeal allowed and claim remitted. The complaint was to proceed before the Employment Tribunal on its merits. The time-limit issue was not to be reopened. Permission to cross-appeal on the transfer issue was refused, although the relevance of that transfer remained open for determination at first instance.

2. A breach of the duty to make reasonable adjustments under sections 3A(2) and 4A of the Disability Discrimination Act 1995 may result from an inadvertent omission. Compliance depends on whether the necessary adjustment was made, not on the employer’s subjective attitude.

3. Paragraph 3 of Schedule 3 governs when time begins to run. Paragraphs 3(3)(c) and 3(4) apply both to an objectively deliberate omission and to an inadvertent omission deemed to be deliberate for limitation purposes. If the employer takes an inconsistent step, the decision is deemed to occur then. Otherwise, it occurs when the period expires within which the employer might reasonably have been expected to perform the omitted act.

4. A failure to make reasonable adjustments is, in its nature, an omission rather than a continuing act. Nevertheless, an omission may persist factually until a deemed decision date arises under paragraph 3(4). The claimant had pleaded a continuing omission lasting until 1 August 2006, not a one-off omission occurring in August 2005.

5. No earlier deemed date had been pleaded or advanced by the council before the tribunals. Although 28 July 2006 might arguably have been an inconsistent act, that case had not been put. The council had received a fair opportunity to formulate its limitation defence and could not relitigate the issue on a new basis after remission.

6. Sedley LJ emphasised that paragraph 3 eliminates continuing omissions from the computation of time by assigning them a notional date. The resulting difficulty for claimants may be addressed by prompt proceedings, an agreement preserving the limitation position, and the tribunal’s just and equitable power under paragraph 3(2).

• Court of Appeal (Civil Division): Allowed the claimant’s appeal, refused permission for the council’s cross-appeal, and remitted the surviving claim for determination on its merits without reopening limitation. [2009] EWCA Civ 22.
• Employment Appeal Tribunal: His Honour Judge McMullen allowed the council’s appeal in UKEAT/0409/07. He held that the surviving claim concerned a one-off omission in August 2005 and was out of time.
• Employment Tribunal: Mr Hildebrand held that three complaints were out of time but that the failure-to-transfer complaint extended until 1 August 2006 and was in time.