Abertawe Bro Morgannwg University Local Health Board v Morgan

The statutory date on which time begins to run for a reasonable-adjustments claim is distinct from the date on which the breach began. Under section 123(4)(b) of the Equality Act 2010, the reasonable period for compliance should be assessed from the claimant’s perspective and by reference to what the claimant knew or ought reasonably to have known.

The tribunal’s power to extend time where just and equitable is broad and unfettered. No good reason for delay, or direct evidence explaining it, is a precondition. The length and reasons for delay and resulting prejudice will usually be relevant. An appellate court may intervene only for an error of principle or a conclusion outside the tribunal’s very wide permissible ambit.

A disabled psychiatric nurse brought claims against her employing health board for disability-related harassment and failure to make reasonable adjustments by redeploying her. The employment tribunal upheld those claims and extended time under section 123 of the Equality Act 2010.

Following a first appeal, the Employment Appeal Tribunal confined the reasonable-adjustments claim to April–August 2011 and remitted both that claim and the extension-of-time decisions. The tribunal again upheld the claims and extended time. A second Employment Appeal Tribunal dismissed the Board’s appeal.

The Board appealed, contending that the tribunal’s finding about when time began was inconsistent with a subsisting breach and that its just-and-equitable decisions were legally flawed or perverse.

1. Appeal dismissed. The date on which a failure is treated as occurring for limitation purposes under section 123(4)(b) of the Equality Act 2010 does not determine when the underlying breach first began. Section 123 addresses the calculation of time, whereas the duty under section 20(3) begins when the employer can take reasonable steps to avoid the relevant disadvantage. The tribunal could therefore find a breach during April–July 2011 although time began to run on 1 August 2011.

2. For an omission, time runs when the period in which the respondent might reasonably have been expected to comply expires. That period should in principle be assessed from the claimant’s perspective, having regard to facts known or reasonably knowable to the claimant. This prevents time expiring while the claimant reasonably believes that the employer is addressing the disadvantage.

3. The words “such other period as the employment tribunal thinks just and equitable” confer the widest possible discretion. Section 123(1) contains no prescribed checklist. A tribunal need not work through the factors in section 33(3) of the Limitation Act 1980, although it must not omit a significant factor. The length and reasons for delay and prejudice to the respondent will almost always be relevant.

4. There is no statutory requirement for a claimant to establish a good reason for delay or to give direct evidence explaining it. The existence and nature of any apparent explanation are relevant matters, but their identification and weight are for the tribunal.

5. The tribunal was entitled to infer from the evidence that the claimant’s mental ill-health, her involvement in internal processes and delays in those processes provided some explanation for the late claims. Pursuit of a grievance was not by itself sufficient, but could be placed in the balance with ill-health, the prospect of internal resolution and employer-caused delay.

6. Appellate intervention is confined to an error of principle, such as ignoring a plainly significant factor or giving substantial weight to a plainly irrelevant one, or a conclusion outside the very wide range of reasonable judgments. The tribunal’s generous extensions were neither perverse nor legally erroneous. Bean LJ agreed with Leggatt LJ.

1. Court of Appeal (Civil Division): By [2018] EWCA Civ 640, unanimously dismissed the Board’s appeal and upheld the extension of time and the finding of failure to make reasonable adjustments.

2. Employment Appeal Tribunal: HHJ Shanks dismissed the Board’s second appeal in UKEAT/0320/15/DM.

3. Employment Tribunal on remittal: Again upheld the reasonable-adjustments and harassment claims and found it just and equitable to extend time.

4. Employment Appeal Tribunal on first appeal: Allowed the Board’s appeal in part. It confined the reasonable-adjustments issue to April–August 2011 and remitted that issue and the extension-of-time decisions.

5. Employment Tribunal: Initially upheld claims for disability-related harassment and failure to make reasonable adjustments, and extended time under section 123 of the Equality Act 2010.