Employment Appeal Tribunal gives guidance on the timing of failures to make reasonable adjustments

In the recent case of Fernandes v DWP the Employment Appeal Tribunal allowed an appeal in a disability discrimination claim of failure to make reasonable adjustments. The key question was how you should ascertain when a ‘failure’ to make a reasonable adjustment occurs. It is important for this to be established because time begins to run for instituting a claim (by commencing ACAS Early Conciliation) from the point that the failure occurs.

In this case the claimant requested an ergonomic assessment with a view to being provided with a chair to help with a back-related disability. The request was made in January 2020 and requests continued to be made for over a year whilst the claimant worked from home during the Coronavirus pandemic. The tribunal held that time would begin to run on the claimant’s claim from the date at which the tribunal concluded that the respondent would have been expected to make the adjustment. The tribunal found that the claim was accordingly out of time. The EAT held that this was the wrong test. They set out the correct approach as follows:

• The duty to make an adjustment arises as soon as there is a substantial disadvantage to the disabled employee from a provision, criterion or practice (presuming the knowledge requirements are met) and failure to make the adjustment is a breach of the duty once it becomes reasonable for the employer to have to make the adjustment.
• Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not.
• That notional date will accrue if the employer does an act inconsistent with complying with the duty.
• If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee. There should be an objective analysis of facts known to the claimant, which is then considered on the basis of what a reasonable person would conclude, from those facts, about the respondent’s intentions to comply with the duty. That will identify the notional date.

For more information please contact a member of our Employment team.