Abertawe Bro Morgannwg University Local Health Board v Morgan

Factual and Procedural Background

The Plaintiff commenced employment with Company A in January 2007 as a psychiatric nurse therapist. The Plaintiff suffered from a depressive illness, which caused prolonged absence from work from July 2010 until dismissal by Company A in December 2011. It was undisputed that the Plaintiff was disabled within the meaning of section 6 of the Equality Act 2010.

In March 2012, the Plaintiff initiated proceedings before an employment tribunal alleging disability discrimination and unfair dismissal. The tribunal dismissed the unfair dismissal claim but upheld claims of harassment by a Company A HR advisor and failure by Company A to make reasonable adjustments under section 20 of the Equality Act 2010. The tribunal found it just and equitable to allow these claims despite being brought outside the three-month time limit specified in section 123(1) of the Equality Act.

Company A appealed to the Employment Appeal Tribunal (EAT), which partially allowed the appeal in February 2014, clarifying the interpretation of medical evidence and remitting issues concerning the period April to August 2011 and the extension of time discretion back to the employment tribunal.

The employment tribunal reconsidered the remitted issues without new evidence and again found the reasonable adjustments claim well-founded and the extension of time just and equitable. Company A appealed again to the EAT, which dismissed the appeal in March 2016. Company A was granted permission to appeal further to this court.

Legal Issues Presented

1. Whether the employment tribunal was entitled to find it just and equitable to extend the time limit under section 123 of the Equality Act 2010 for bringing the claims of failure to make reasonable adjustments and harassment.
2. Whether the tribunal’s finding that the reasonable adjustments claim was well-founded was consistent with its determination of when time began to run.
3. The proper approach to the exercise of the tribunal’s discretion under section 123 regarding extension of time.
4. Whether the tribunal erred in law or acted perversely in its assessment of reasons for delay and prejudice in extending time.

Arguments of the Parties

Appellant's Arguments

• The employment tribunal’s conclusion that the reasonable adjustments claim was well-founded was inconsistent with its finding that time began to run by August 2011, implying no breach of duty before that date.
• The date when time begins to run under section 123(4)(b) should also be the date when a breach of duty first occurs, so no breach existed after August 2011 due to the Plaintiff’s incapacity.
• The tribunal misdirected itself by failing to place a burden on the Plaintiff to justify the extension of time and to provide an explanation for the delay.
• The tribunal’s reliance on the grievance process and the Plaintiff’s mental health as reasons for delay lacked evidential basis and was improper.
• The tribunal’s decisions to extend time were perverse or based on irrelevant considerations.

Respondent's Arguments

• The date when time begins to run under section 123 is distinct from when the breach of duty first occurs; the section addresses time limits, not accrual of cause of action.
• The tribunal correctly applied the broad discretion under section 123 to consider all relevant factors, including the Plaintiff’s ill-health and pursuit of internal grievance processes.
• There is no statutory or case law requirement that the Plaintiff must provide an explanation for delay to justify extension of time.
• The tribunal was entitled to infer from the evidence the impact of the Plaintiff’s illness on her ability to bring the claim sooner.
• The tribunal’s exercise of discretion was within the wide margin afforded and not susceptible to being overturned on appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the first ground of appeal concerning the timing and nature of the breach of the duty to make reasonable adjustments. It clarified that section 123(4) of the Equality Act 2010 deals exclusively with when time begins to run for bringing claims and does not determine when a breach of duty first occurs. The court distinguished this from other limitation provisions where the cause of action accrues at the same time as the breach.

The court explained that for omissions extending over a period, such as failure to make reasonable adjustments, the statutory default rule is that time begins to run at the end of the period within which the employer might reasonably have been expected to comply. This period must be assessed from the claimant’s perspective, considering what was or should have been apparent to the claimant at the relevant time.

Applying this, the employment tribunal’s finding that the Plaintiff would have realized by June/July 2011 that Company A was not complying with its duty was reasonable. The tribunal’s conclusion that time began to run by no later than 1 August 2011 was a judgment open on the facts and consistent with its finding that the claim was well-founded for the period from April to August 2011.

Regarding the exercise of the discretion to extend time, the court emphasized the wide and unfettered nature of the tribunal’s discretion under section 123(1). The tribunal was not required to apply a fixed list of factors nor to be satisfied that there was a good reason for delay. It was only required not to omit significant relevant factors or to base its decision on irrelevant considerations.

The tribunal had considered the Plaintiff’s ill-health, the delays and failures in internal grievance processes, and the limited prejudice to Company A. The court found no error in principle or perversity in these findings. The tribunal’s allowance of the extension was within the broad ambit of reasonable decisions.

The court rejected the argument that the tribunal improperly placed a burden on the Plaintiff, clarifying that the discretion does not require the claimant to prove a good reason for delay but that reasons for delay are relevant factors to consider.

The court acknowledged that some inferences drawn by the tribunal regarding the grievance process and the Plaintiff’s mental capacity were tenuous but ultimately within the tribunal’s judgment based on the evidence before it.

Holding and Implications

The court DISMISSED THE APPEAL.

The ruling confirms that the employment tribunal’s interpretation of when time begins to run under section 123(4) of the Equality Act 2010 is correct and that the tribunal’s exercise of its broad discretion to extend time was lawful and reasonable. The decision upholds the continuation of the Plaintiff’s claims for failure to make reasonable adjustments and harassment despite delay beyond the three-month time limit.

The direct effect is that the Plaintiff’s claims will proceed to remedies hearing. No new precedent was established beyond affirming existing principles on the application of section 123 and the scope of discretion to extend time.