Abertawe Bro Morgannwg University v Morgan

For limitation under section 123 of the Equality Act 2010, the date on which time starts to run is conceptually distinct from the date on which an employer first breaches the reasonable-adjustments duty. The two findings are not necessarily inconsistent.

Whether it is just and equitable to extend time requires consideration of all relevant circumstances, particularly the length and reasons for delay and prejudice. A tribunal may draw reasonable inferences from the evidence about the effect of ill health, internal processes and other circumstances on delay, even without direct evidence from the claimant. The Appeal Tribunal will not interfere merely because an extension is generous or the reasons could have been expressed better.

The claimant, a disabled psychiatric nurse therapist, brought claims of harassment, disability discrimination and unfair dismissal against her employer. The Employment Tribunal upheld, among other matters, a reasonable-adjustments claim concerning possible redeployment between April and August 2011 and harassment claims concerning another member of staff.

An earlier Employment Appeal Tribunal decision had remitted the reasonable-adjustments and limitation issues. On remission, the Tribunal again found the surviving reasonable-adjustments claim well founded and extended time for that claim and for the harassment claim concerning Ms Keighan. The employer appealed, alleging inconsistency in the findings on limitation and breach, and errors in extending time.

The central issues were whether the findings were inconsistent and whether the Tribunal had lawfully exercised its just-and-equitable discretion.

1. Appeal dismissed. The Tribunal's finding that the employer breached the duty to make reasonable adjustments between April and July 2011 was not inconsistent with its finding that time began to run no later than the beginning of August 2011. The time-limit question under section 123(1)(a) of the Equality Act 2010 is conceptually distinct from the date of the first breach. In any event, the Tribunal had found that time began before 1 August 2011.

2. The statutory discretion under section 123(1)(b) required the claimant to persuade the Tribunal that an extension was just and equitable. It did not impose a conventional burden of proof requiring direct evidence of every circumstance. The Tribunal had to make findings about the reasons for delay, where necessary by inference, and assess the length and reasons for delay and the prejudice to each party.

3. The Tribunal was entitled to infer, from the evidence heard over several days, that the claimant's serious ill health, the demands of sickness-absence procedures and the unresolved grievance process affected her ability to present the reasonable-adjustments claim. Although the reasons could have been clearer, including as to the trade union's role and successive periods of delay, the decision was neither based on irrelevant matters nor perverse.

4. The same conclusion applied to the extension for the Keighan harassment claim. Pursuing a grievance alone does not justify an extension. However, it may properly be weighed with genuine attempts at internal resolution, illness and unexplained employer delay. The Tribunal had adequate evidential material and was not required to find that the claimant had been completely unable to present a claim.

5. The failure of other claims did not undermine an otherwise well-founded claim when the Tribunal was required to consider limitation separately for each claim. The remedies issues remained for determination by the Employment Tribunal.

• Employment Appeal Tribunal: The employer's appeal against the remitted Employment Tribunal judgment was dismissed.
• Employment Tribunal: In a judgment promulgated on 20 March 2015 following remission, the Tribunal upheld the surviving reasonable-adjustments claim and extended time for it and for the Keighan harassment claim.
• Employment Appeal Tribunal: An earlier appeal hearing on 18 February 2014 resulted in partial reversal and remission of the reasonable-adjustments and limitation issues.
• Employment Tribunal: The original judgment was promulgated on 28 March 2013 after a six-day hearing.