The Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil & Ors (Disability Discrimination)

A duty to make reasonable adjustments is a continuing duty throughout employment while the relevant disadvantage and duty remain. A refusal of a proposed adjustment does not necessarily fix time for a claim under Equality Act 2010, section 123. The question is whether there was an ongoing situation in which the employer continued not to fulfil that duty, rather than whether there was a discriminatory policy.

Where a disabled employee establishes disability, a PCP, substantial disadvantage and a potentially reasonable adjustment, the employer must show why the proposed step would not have been reasonable. An employer’s unexplained refusals and failure to produce evidence within its power may support a finding that it failed to make the adjustment.

The Employment Tribunal upheld Ms Jamil’s complaint that the Secretary of State had failed to make a reasonable adjustment by transferring her workplace from Ealing to Uxbridge. Her rheumatoid arthritis caused fatigue and made punctual attendance at the more distant office substantially difficult. The Tribunal found that the requirement to work at Ealing was a PCP which placed her at a substantial disadvantage.

The employer appealed on procedural and substantive grounds. It challenged the Tribunal’s finding that it did not wish to transfer her to Uxbridge and contended that the claim was out of time because each refusal of transfer was a separate act. The central issue was whether the unfulfilled adjustment duty amounted to conduct extending over a period under section 123 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the employer failed to make the reasonable adjustment of transferring the claimant from Ealing to Uxbridge.

2. The claimant had established disability, the PCP requiring attendance at Ealing, the resulting substantial disadvantage, and a potentially reasonable adjustment. In those circumstances, the burden lay on the employer to show that the transfer was not a step it was reasonable to require. It produced no clear direct evidence explaining the repeated refusals or demonstrating that no suitable vacancy or other feasible arrangement existed. The Tribunal was entitled to draw conclusions from that absence of evidence.

3. The procedural challenge also failed. The possibility that the employer did not wish the claimant to work at Uxbridge had been raised in the proceedings and the employer had a fair opportunity to meet it. The finding was supported by the history of repeated requests and refusals, and by the absence of evidence from those responsible. Although the Tribunal’s phrase “brick wall of refusal” was unhelpful, it did not disclose an error of law.

4. The Tribunal did not err in holding that the claim was in time. Cast v Croydon College [1998] IRLR 318 (CA) concerned an allegedly discriminatory policy. This case concerned an unfulfilled statutory duty to make reasonable adjustments. Following the approach in Hendricks v Commissioner of Police for the Metropolis [2002] EWCA Civ 1686, the inquiry was directed to the substance of the complaint and to whether there was an ongoing situation, not to whether a discriminatory policy could be identified.

5. While the duty remained, it required fulfilment each day. The employer’s stated possibility of reviewing a transfer meant that its refusal was not necessarily final. The Tribunal permissibly found a continuing duty that remained unfulfilled until the end of employment. Paragraph 54 of its reasons was unnecessary to that conclusion, but did not undermine it.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal’s finding of a failure to make reasonable adjustments.
• Employment Tribunal, Watford: in reasons given on 31 October 2012, dismissed the claimant’s other claims but upheld her complaint concerning transfer from Ealing to Uxbridge.