Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640

Appeal against the dismissal of the Respondent's appeal against findings of failure to make reasonable adjustments and harassment. Appeal dismissed.

Read the background to the case in the EAT judgment [here](). The Respondent appealed against the dismissal of its appeal in the EAT on the basis that the date referred to in section 123(4)(b), when applied to a claim alleging failure to comply with the duty to make reasonable adjustments, is not only the date when time begins to run for the purpose of calculating the relevant time limit but is also the date when a breach of the duty first occurs. Thus, the finding of the tribunal that time began to run by 1 August 2011 was also a finding that no breach of duty occurred before that date and therefore the finding that the Respondent had not made reasonable adjustments in the period from April 2011 to August 2011 could not stand.

The court dismissed the appeal. Section 123(3) and (4) determine when time begins to run in relation to acts or omissions which extend over a period. In the case of omissions, the approach taken is to establish a default rule that time begins to run at the end of the period in which the Respondent might reasonably have been expected to comply with the relevant duty. Ascertaining when the Respondent might reasonably have been expected to comply with its duty is not the same as ascertaining when the failure to comply with the duty began. Pursuant to section 20(3) of the Equality Act, the duty to comply with the requirement relevant in this case begins as soon as the employer is able to take steps which it is reasonable for the employer to have to take to avoid the relevant disadvantage. It can readily be seen, however, that if time began to run on that date, a Claimant might be unfairly prejudiced. In particular, the Claimant might reasonably believe that the employer was taking steps to seek to address the relevant disadvantage, when in fact the employer was doing nothing at all. If this situation continued for more than three months, by the time it became or should have become apparent to the Claimant that the employer was in fact sitting on its hands, the primary time limit for bringing proceedings would already have expired. The other grounds of appeal were also dismissed.


Published: 29/03/2018 11:37

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