Olenloa v North West London Hospitals NHS Trust

An employer’s duty to make reasonable adjustments does not automatically end because a disabled employee begins sick leave. Where it is alleged that the adjustments would have enabled the employee to remain in, or return to, work, a tribunal must make findings on that issue before deciding that an omission ended on the first day of absence.

Those findings are also necessary to identify when an employer is treated as having decided on a failure to act under section 123 of the Equality Act 2010, and to assess the length of any delay when considering a just and equitable extension of time.

The claimant, a clinical team leader nurse who had been on sick leave since 29 September 2010, alleged failures to make reasonable adjustments for disability. His first tribunal claim was presented on 28 January 2011. He later amended it and lodged a further claim.

At a pre-hearing review, the Employment Judge held that complaints concerning matters before 29 September 2010 were out of time. The Judge held that any relevant duty to make adjustments ended when the claimant commenced extended sick leave, and refused a just and equitable extension.

The claimant appealed. The central issue was whether the limitation and extension questions could properly be determined without findings as to the adjustments required, their likely effect on his ability to work, and the date on which the respondent was to be treated as deciding not to make them.

1. Appeal allowed. The Employment Judge’s orders that the pre-29 September 2010 complaints were out of time, and that it was not just and equitable to extend time, were set aside.
2. The claimant’s case was that the respondent’s continuing failure to make identified reasonable adjustments had caused his inability to attend work, and that the adjustments would enable him to return. The Employment Judge neither accepted nor rejected that case. She therefore erred in treating the commencement of sick leave as necessarily ending the duty to make adjustments.
3. The case was distinguishable from authorities concerning employees unable or unwilling to return to work at all. On the material before the Employment Judge, it could not be concluded without findings of fact that adjustments would serve no purpose.
4. The error also invalidated the limitation ruling. Under section 123(4)(b) of the Equality Act 2010, the relevant date is the date by which the employer might reasonably have been expected to perform the omitted act. That fact-sensitive date could not be fixed simply by reference to the first day of sickness absence.
5. The length of delay was material to the exercise of the just and equitable discretion. Since the primary limitation date had not lawfully been determined, the refusal to extend time could not stand.
6. The issues of which complaints were in time and, if necessary, whether time should be extended were remitted for determination at the full merits hearing. Whether a limitation issue should instead be determined at a pre-hearing review is a case-management decision dependent on the circumstances.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and set aside the pre-hearing-review limitation rulings.
• Employment Tribunal: By a judgment sent on 11 August 2011 following a pre-hearing review, held complaints concerning matters up to 28 September 2010 out of time and refused a just and equitable extension.