Factual and Procedural Background
The appellant, a disabled teacher employed by the respondent local authority until 1 August 2006, worked in prison education but faced difficulties due to his disability. Initially working at one prison, he was later transferred to another prison and then to lighter duties before being placed on gardening leave. On 1 August 2006, his employment was transferred under TUPE to another educational institution. He lodged a grievance regarding matters up to 31 July 2006 and subsequently presented a claim to the Employment Tribunal alleging the respondent failed to transfer him to suitable alternative work despite knowledge of his disability, and that he was forced to transfer under TUPE to unsuitable employment.
The respondent argued the claim was out of time and sought to strike it out. After a pre-hearing review, the Employment Tribunal held that only one ground of complaint—the failure to transfer to suitable alternative work—was in time. The respondent appealed, raising a further point that it was not the proper respondent due to the TUPE transfer. The Employment Appeal Tribunal allowed the appeal on the time point, treating the claim as out of time on the basis that the alleged omission occurred in August 2005.
The appellant appealed the striking out of the surviving claim, with permission granted. The respondent sought permission to cross-appeal on the TUPE point, which was refused by the Court of Appeal. The Court of Appeal considered the formulation of the complaint, the application of the Disability Discrimination Act 1995, and the timing of the alleged discriminatory acts or omissions in relation to the time limits for bringing claims.
Legal Issues Presented
- Whether the appellant's claim of failure to transfer to suitable alternative work and enforced transfer under TUPE was brought within the statutory time limits under the Disability Discrimination Act 1995.
- The proper interpretation of the time limit provisions in Schedule 3 paragraph 3 of the Disability Discrimination Act 1995, especially concerning continuing omissions and when time begins to run.
- Whether the respondent local authority was the correct respondent following the TUPE transfer of employment.
Arguments of the Parties
Appellant's Arguments
- The failure to transfer him to suitable alternative work was a continuing omission extending up to the date of the TUPE transfer on 1 August 2006, and therefore the claim was in time.
- The time limit provisions should not be construed to impose an artificial start date for time running that might preclude claims while the employer was still failing to comply with the duty to make reasonable adjustments.
- The duty to make reasonable adjustments can be breached by inadvertent omissions, not only deliberate acts, and the time limit rules should accommodate this.
Respondent's Arguments
- The claim was out of time because the alleged discriminatory act or omission occurred in August 2005, constituting a one-off act triggering the start of the limitation period.
- The time limit provisions in Schedule 3 paragraph 3 should be interpreted to treat omissions as deliberate on a notional date, thus starting time running at that point.
- The respondent argued that the correct respondent might be the transferee employer following the TUPE transfer, raising a jurisdictional point.
- The appellant had the opportunity to seek an extension of time but did not provide evidence to support such an extension.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Spence v. Intype Libra Limited (UKEAT/0617/06) |
The duty to make reasonable adjustments is objective; compliance is assessed irrespective of employer's subjective attitude. |
Confirmed that whether the adjustment is made by luck or judgment is immaterial; the issue is whether the reasonable adjustment was made. |
| Humphries v Chevler Packaging Limited (UKEAT/0224/06) |
Failure to make reasonable adjustments is an omission, not an act; time runs from the date of a deliberate omission or an inconsistent act. |
Supported the interpretation that a failure to make adjustments is an omission and that, in absence of evidence, a deliberate decision to omit can be imputed at the end of a reasonable time. |
| Barclays Bank v Kapur [1991] ICR 208 |
Definition and ambit of "deliberate omission" in discrimination legislation context. |
Held less directly applicable under the 1995 Act due to the specific duty to make reasonable adjustments creating a wider scope for omissions as acts of discrimination. |
Court's Reasoning and Analysis
The Court analyzed the nature of the appellant's claim as one alleging a continuing omission by the respondent to comply with the statutory duty to make reasonable adjustments under the Disability Discrimination Act 1995. The Court emphasized that unlike other discrimination legislation, this Act expressly contemplates omissions as acts of discrimination, including inadvertent failures.
The Court considered the relevant time limit provisions in Schedule 3 paragraph 3, which require claims to be presented within three months from when the act complained of was done. The Court explained that for omissions, the statutory scheme treats them as deliberate omissions as of a notional date, either when an inconsistent act occurs or when the period within which the omitted act might reasonably have been done expires.
The Court rejected the Employment Tribunal's and Employment Appeal Tribunal's characterizations of the claim as either continuing acts or a one-off omission in August 2005. Instead, it found the claim alleged a continuing omission extending up to 1 August 2006, the date of the TUPE transfer.
The Court noted that while the respondent might have been able to identify an earlier date when the omission became definitive (such as 28 July 2006), it had not done so in its response or during earlier proceedings, thus the appellant was not on notice to meet such a case.
The Court held that the claim was therefore not out of time and remitted the matter to the Employment Tribunal for determination on the merits, including the relevance of the TUPE transfer, but without re-opening the time limit issue.
Regarding the TUPE point, the Court declined to grant permission for a cross-appeal, reasoning that this issue was better addressed initially at first instance and on appeal with reasoned decisions from lower tribunals.
The Court also acknowledged the practical difficulties the statutory time limit regime creates for claimants in cases of continuing omissions but noted that the statute provides for extension of time where just and equitable.
Holding and Implications
The Court of Appeal allowed the appellant's appeal, holding that the surviving claim was not out of time and should proceed to be heard on the merits by the Employment Tribunal. The Court REINSTATED the claim relating to the failure to transfer to suitable alternative work and the enforced transfer under TUPE.
The Court refused the respondent's application for permission to cross-appeal on the TUPE point, leaving that issue to be addressed in due course by the Employment Tribunal and potentially on appeal thereafter.
The decision clarifies that under the Disability Discrimination Act 1995, continuing omissions to make reasonable adjustments are treated as deliberate omissions for the purpose of time limits, commencing at a notional date. This imposes a strict framework for timing claims but allows for extensions where just and equitable, balancing the need for finality with fairness to claimants.
No new precedent was established beyond the interpretation of the time limit provisions as applied to continuing omissions under the 1995 Act, and the procedural handling of the TUPE-related respondent issue.