Disability Discrimination : Kingston upon Hull City Council v Matuszowicz

Kingston upon Hull City Council v Matuszowicz: [2009] EWCA Civ 22

CA: Sedley, Jacob, Lloyd LJJ: 10 February 2009

The claimant employee, whose right arm had been amputated above the elbow, began working for the respondent council in 2003 as a teacher at a prison. He had a problem coping with heavy prison doors, and by August 2005 it was clear that working in the prison sector was unsuitable because of his disability. He was moved to lighter duties, but from December 2005 he was placed on leave and, on 1 August 2006,
was part of the workforce at the prison whose employment transferred to a new employer.

The employee presented a grievance to the council in October 2006 and on 31 January 2007 presented a claim of disability discrimination, contrary to section 3A of the Disability Discrimination Act 1995, contending, inter alia, that by not transferring him to more suitable employment the council failed to
comply with its duty to make reasonable adjustments under section 4A(1).

The council contended that the claim was outside the extended time limit of six months and applied to strike out the claim. An employment tribunal chairman, refusing the application, held that the claim was in time as it related to an "act extending over a period", within paragraph 3(3)(b) of Schedule 3 to the Act, continuing up to 1 August 2006.

An appeal by the council was allowed by the Employment Appeal Tribunal, which held that the complaint was out of time, being about a one-off act of omitting to make a reasonable adjustment in August 2005.

The employee appealed.

The Court of Appeal held:

The claim of failure by the council to make adjustments was an allegation of a continuing omission, not of a continuing act or one-off omission. For the purpose of determining the period within which proceedings had to be brought, paragraph 3(1) of Schedule 3 to the Disability Discrimination Act 1995 took as its starting point the time when the relevant "act" was "done", and, in the context of the duty to make reasonable adjustments under section 4A, where an employer had not deliberately failed to comply with that duty, under
paragraph 3(4) he was to be treated as having decided on it at a date which was, in some sense, artificial.

Where such an employer had done nothing inconsistent with making reasonable adjustments, he was to be
treated as having decided on omitting to do so at the time when he might reasonably have been expected to make them. On the evidence, the council appeared to have been considering the claimant's possible
redeployment until just before the transfer, and, since it could not be said that there was any earlier date, the omission to comply with the duty to make reasonable adjustments continued until 1 August 2006, and the claim was not out of time.

The appeal was allowed.