Cyprien v Bradford Grammar School

A negligent failure to make reasonable adjustments is subject to the limitation regime for omissions in Schedule 3 to the Disability Discrimination Act 1995. Time runs from the date by which a reasonable employer would have made the adjustment. It does not remain indefinitely open merely because the omission continues.

The assessment of that date is one of fact. A continuing omission may remain relevant to compensation if liability is established, but it does not postpone the primary limitation period.

The decision whether to extend time on a just and equitable basis is a wide tribunal discretion. An appeal succeeds only for an error of principle or a plainly wrong or perverse conclusion.

The Claimant, a school caretaker, alleged disability discrimination arising from failures to alter duties that aggravated his knee condition. The Employment Tribunal found two failures to make reasonable adjustments after the Respondent knew, or ought to have known, that he was disabled. It dismissed those complaints as out of time and declined to extend time on a just and equitable basis. It separately rejected harassment, which was not appealed.

The Claimant appealed against the limitation and extension decisions. The central issue was when time began to run for a negligent, continuing omission to make a reasonable adjustment.

1. Appeal dismissed. The Employment Tribunal correctly held that both reasonable-adjustment complaints were outside the primary three-month period and that it was not just and equitable to extend time.

2. Schedule 3 to the Disability Discrimination Act 1995 provides expressly for deliberate omissions but not negligent omissions. Applying Matuszowicz v Kingston upon Hull City Council [2009] 3 AER 681, a negligent omission is nevertheless treated, for limitation purposes, as a deliberate omission on the date when a reasonable employer would have made the omitted adjustment. This is an artificial but binding statutory date.

3. Accordingly, a negligent omission may be continuing in fact, yet the primary limitation period expires three months after the date by which the employer should reasonably have acted. The continuing nature of the omission can remain relevant to compensation if liability is established, but does not defer the limitation date.

4. The Tribunal had applied that test and its conclusion that the relevant adjustment should, at the latest, have been made within three months of the employer receiving the disability information was a finding of fact. It was not challenged as perverse. The court therefore did not need to determine whether the duty continued while the Claimant was absent from work or after his resignation.

5. The Tribunal's refusal to extend time disclosed no error of law. It was entitled to consider the Claimant's general awareness that claims were subject to time limits, his lack of prompt action, and his reasons for raising discrimination. It did not need expressly to state the obvious prejudice caused by refusal, since refusal necessarily barred the claim. The high threshold for perversity was not met.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Tribunal's dismissal of the reasonable-adjustment complaints as out of time.
• Employment Tribunal (Leeds): judgment sent to the parties on 2 April 2012. It found two failures to make reasonable adjustments, but held the claims out of time and declined a just and equitable extension.