Kerr v Fife Council (DISABILITY DISCRIMINATION; time limits) (Revised) [2021] UKEAT 0022/20/0906

Appeal against the dismissal of a claim of disability discrimination because it was time barred. Appeal allowed.

The Claimant was disabled. She brought claims against the Respondent, alleging that the Respondent had failed to make reasonable adjustments in terms of section 20 of the Equality Act, 2010 ("EA") by failing to:

a) adjust her shift pattern to accommodate the symptoms of fatigue associated with Parkinson's Disease; and

b) re-classify the reason for her absences so that her pay would not be adversely affected.

Both these adjustments had been considered by the Respondent in December 2018 at the latest. The Claimant did not make her claim until May 2019 so therefore out of time. The EJ dismissed her claims, 2 particular factors tipping the balance in favour of the Respondent: (i) the fact that the Claimant had been advised in November 2018 that her union/solicitors were not proceeding with a Tribunal claim on her behalf; and (ii) that the Respondent would have been entitled to believe by November 2018 that matters between it and the Claimant had been resolved. The Claimanat appealed.

The EAT allowed the appeal. The EJ had erred in regarding the claim about the shift pattern as being about an "act" rather than an "omission" of the Respondent consisting of a failure to make an adjustment in terms of section 20 EA.  That had led to a failure properly to consider and apply the provisions of sections 123(3) and (4) EA. The EJ had also erred in concluding that by continuing to pay the Claimant on an un-reclassified basis the Respondent was deemed to have acted in a way that was inconsistent with making the adjustment sought in terms of section 123(4)(a).  The case was remitted to a differently constituted Tribunal for a full merits hearing, under reservation of all issues of time-bar.

Published: 12/07/2021 10:40

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