M Fernandes v Department for Work and Pensions

For an omission-based reasonable-adjustments claim, the limitation date is not necessarily the date when the employer first breached its duty. Where there is no act inconsistent with compliance, the tribunal must identify when a reasonable employee, knowing the relevant facts, would conclude that the employer would not comply. That is an objective inquiry, distinct from the claimant’s actual state of mind.

The tribunal must first determine when the employer reasonably ought to have made the adjustment. It must then apply the statutory limitation test. A time-barred claim cannot be revived, but materially changed circumstances may create a new cause of action.

The claimant, a disabled Universal Credit Agent, alleged that the respondent failed to provide ergonomic furniture and equipment while requiring her to work from home. She also brought an indirect disability discrimination claim.

An Employment Tribunal held that both claims were out of time and declined to extend time on a just and equitable basis. It treated 4 August 2020, when Smart Card problems prevented the claimant performing her main duties, as the end of a reasonable period for providing the furniture and equipment.

The claimant appealed. The central issue was how to identify the notional limitation date for an employer’s omission to make reasonable adjustments under Equality Act 2010.

1. Appeal allowed in part. Grounds 1 and 2 succeeded. Grounds 3 and 4 were dismissed. The reasonable-adjustments limitation issue was remitted to the Employment Tribunal.

2. Under section 123, a failure to make reasonable adjustments is an omission. In the absence of a specific decision or an act inconsistent with compliance, the tribunal must identify the feature causing the disadvantage and determine when the employer reasonably ought to have taken steps to alleviate it. That factual date may establish when the breach began, but it does not by itself fix the limitation date.

3. The tribunal must then ask when a reasonable employee, with the facts known to the claimant, would conclude that the employer was not going to comply with the duty. This is an objective jurisdictional assessment. The claimant’s subjective state of mind is instead relevant to the separate discretionary question whether it is just and equitable to extend time. This approach was supported by [2018] ICR 1194 and [2009] EWHC Civ 22.

4. The Employment Judge misdirected himself by treating the date when the respondent might reasonably have been expected to make the adjustment as the start date for limitation. Although the Smart Card difficulty could be relevant to whether the disadvantage and omission had ended, the Judge had not considered when a reasonable employee would have understood that position, nor whether it was temporary.

5. A limitation ruling is jurisdictional and prevents the same completed claim being pursued again. It does not necessarily extinguish a future duty to make adjustments. Materially changed circumstances may give rise to a new claim, assessed factually; absent such change, res judicata may prevent the earlier issue being reopened.

6. The indirect discrimination claim failed. On the pleaded PCPs, any policy of not providing furniture had crystallised by 21 July 2020. The tribunal had also adequately addressed any just and equitable extension. The case required further findings, so it was remitted. Applying [2004] IRLR 763, the matter was returned to Regional Employment Judge Burgher for allocation to himself or another Employment Judge or Tribunal.

• Employment Appeal Tribunal: Allowed the appeal on grounds 1 and 2, dismissed grounds 3 and 4, and remitted the reasonable-adjustments limitation issue.
• Employment Tribunal: Employment Judge Burgher, following a preliminary hearing on 17 March 2022, held that the indirect disability discrimination and reasonable-adjustments claims were out of time and that no just and equitable extension should be granted.