More reasonable adjustment claims could be out of time
- Where an employer fails to make a reasonable adjustment, but does not expressly refuse to make it nor act in a way which is inconsistent with making it, the three month time limit for the employee to claim starts on the date by which the employer ought reasonably to have made the adjustment.
Paradoxically, this could result in an employer arguing that it would have been reasonable for it to make an adjustment at an early date, so that the claim is out of time, while the employee argues that it was reasonable for the employer to take longer deciding what to do.
Uncertainty as to the relevant date may force employees who have requested adjustments to try and get a clear response from the employer (so that time runs from this response) and, if this is not forthcoming, to lodge a claim earlier rather than later. Tribunal judges may also decide that it is just and equitable to permit late claims where the employee was in reasonable doubt as to the relevant date, particularly if the employer continues to reassure the employee that it is still considering the request for adjustments. (Matuszowicz v Kingston upon Hull City Council, CA)
- More employees could be disabled
The definition of disability has been significantly broadened by the Northern Ireland Court of Appeal, in a ruling that does not bind English tribunals but is persuasive.
Disability is defined as requiring an impairment which has lasted 12 months or is likely to last for 12 months or until death. It must have a substantial effect or be likely to have such an effect if the employee were not receiving medical treatment, and if the effect ceases it is treated as continuing to have that effect if the effect is likely to recur.
The Court ruled that "likely" means "could well happen", rather than the previous interpretation of "more probable than not". If followed here, many more employees could be brought within the definition. The decision is being appealed to the House of Lords. (SCA Packaging v Boyle, NICA)
- Changes to disability-related discrimination
The EAT has confirmed that employees' ability to claim disability-related discrimination has been severely restricted by the House of Lords' decision in a housing case (Malcolm)
As expected, the EAT has ruled that the housing decision applies equally to the employment sphere. Where an employee is treated less favourably for a reason connected with disability, eg, long-term absence, their claim will only succeed if the employer would have treated a non-disabled employee's absence more favourably – in effect, direct discrimination. Otherwise the only option for the employee will be to claim for failure to make reasonable adjustments to a provision, criterion or practice. (Child Support Agency (Dudley) v Truman, EAT)
The Government plans to use the forthcoming Equality Bill (expected to be published in late May or early June 2009) to put this right by introducing the concept of indirect disability discrimination, although there are doubts whether this will provide sufficient protection.