Abertawe Bro Morgannwg University Local Health Board v Morgan

The Court of Appeal dismissed the employer's appeal against Employment Tribunal findings that it was just and equitable to extend time under section 123 of the Equality Act 2010 to permit claims of harassment relating to disability and a failure to make reasonable adjustments under section 20. The court held that section 123(3) and (4) properly treat an omission as occurring on the expiry of the period in which the respondent might reasonably have been expected to act, and that that date for time‑running is to be assessed from the claimant's point of view. The tribunal had been entitled to find on the facts that time began to run by no later than the beginning of August 2011 and yet conclude on the balance of probabilities that suitable alternative roles were available in the period April–July 2011, such that there was a breach of the duty to make reasonable adjustments.

The court emphasised the breadth of the tribunal's statutory discretion under section 123(1) to extend time and the limited scope for appellate interference, noting that relevant considerations include the length and reasons for the delay and any prejudice to the respondent. The tribunal did consider the claimant's ill health, the grievance process and respondent caused delay and did not err in law or act perversely in exercising its discretion.

Background and parties: The claimant, Ms Annie Morgan, a psychiatric nurse therapist who was a disabled person within the meaning of section 6 of the Equality Act 2010, was on long‑term sick leave from July 2010 and was dismissed on 15 December 2011. She brought proceedings on 14 March 2012 making claims including disability discrimination, harassment relating to disability and failure to make reasonable adjustments under section 20, and unfair dismissal. Certain claims were dismissed at first instance but the tribunal upheld harassment by an HR adviser and failure to make reasonable adjustments in relation to redeployment for the period April–August 2011. The tribunal extended time under section 123(1).

Procedural history: The Employment Tribunal gave judgment on 28 March 2013. The Board successfully appealed in part to the Employment Appeal Tribunal by order dated 18 February 2014, which remitted issues including whether the reasonable adjustments claim was well founded for April–August 2011 and instructed the tribunal to reconsider whether it was just and equitable to extend time for each claim. On reconsideration the tribunal again found the reasonable adjustments claim well founded for April–July 2011 and extended time to permit presentation on 14 March 2012. The EAT dismissed a further appeal on 8 March 2016 (HHJ Shanks). The Board obtained permission and appealed to the Court of Appeal, which heard the appeal and delivered judgment on 28 March 2018.

Nature of the application and issues: The appeal raised (i) whether the tribunal's finding that time began to run by the beginning of August 2011 was inconsistent with its finding that there had been a breach of the section 20 duty to make reasonable adjustments; and (ii) whether the tribunal erred in law, misapplied its discretion under section 123(1), imposed no effective burden on the claimant to explain delay, or acted perversely in extending time for the reasonable adjustments and harassment claims.

Court's reasoning and conclusions: The court explained that section 123(3) and (4) address omissions by prescribing when time begins to run, and that subsection (4)(b) establishes a default rule treating failure as occurring on the expiry of the period in which the respondent might reasonably have been expected to act. That date is for assessment from the claimant's viewpoint, having regard to what was known or ought reasonably to have been known by the claimant. Consequently the date for time‑running is not necessarily the same as the date when the breach of duty first arose. The tribunal was entitled on the evidence to conclude that it became or should have become clear to the claimant by June/July 2011 that the respondent was restricting its approach to redeployment, and to treat time as beginning to run by the beginning of August 2011, while also finding on the balance of probabilities that suitable alternative roles existed during April–July 2011 and therefore a breach of the adjustment duty. The court reiterated that the discretion under section 123(1) is wide, that tribunals are not required to adopt the factors in section 33(3) of the Limitation Act 1980, and that appellate courts should only interfere if the tribunal erred in principle or reached a conclusion outside the wide ambit of reasonable judgment. On the facts the tribunal had considered the claimant's ill health, pursuit of internal grievance procedures, some respondent delay and lack of significant prejudice to the respondent, and the court found no error of law or perversity in allowing an extension of time. The appeal was dismissed.

Wider context: The court observed the excessive length of these proceedings and commented on the likely modesty of any award for remedies, expressing scepticism about a very large damages claim advanced by the claimant given the difficulty of proving causation in depressive illness.

Appeal dismissed. The Court of Appeal held that section 123(3) and (4) of the Equality Act 2010 properly treat omissions as occurring on the expiry of the period in which the respondent might reasonably have been expected to act, that that date is to be assessed from the claimant's point of view, and that the Employment Tribunal had not erred in law or acted perversely in finding it just and equitable to extend time for the reasonable adjustments and harassment claims in light of the claimant's ill health, internal grievance process and limited prejudice to the respondent.

Employment Tribunal judgment 28 March 2013 (initial hearing). Employment Appeal Tribunal order allowing appeal in part and remitting issues, 18 February 2014 (Langstaff J). Employment Tribunal reconsideration and judgment 20 March 2015. Employment Appeal Tribunal dismissed further appeal, 8 March 2016 (HHJ Shanks) (UKEAT/0320/15/DM). Permission to appeal to Court of Appeal granted; Court of Appeal ([2018] EWCA Civ 640) dismissed the appeal on 28 March 2018.