In Humphries v Chevler Packaging, the EAT were asked to overturn a decision of the Tribunal to reject a claim of disability discrimination on the grounds that it was time-barred. In support of the appeal, the employee argued that the failure of her employer to make a reasonable adjustment to provide alternative employment, after a sickness absence, was an ongoing breach, and that the time for bringing a disability discrimination claim in relation to it ran from the date of her later resignation, rather than the earlier refusal. The EAT disagreed, and the disability discrimination claim was out of time.
Mrs Humphries was employed by Chevler Packaging as a machine operator/packer. Due to pain to her right arm and shoulder, she was off sick from September to November 2003. On her return to work it was agreed that she could work fewer hours and become part-time. Unfortunately, the pain persisted and her employer looked at alternative employment. Mrs Humphries was offered alternative employment as a cleaner, but rejected this offer due to the nature of the work and the fact that the pay was lower. She then went off sick for a further 18 months from 14 November 2003 until 16 May 2005.
Mrs Humphries later complained that during her absence her employer had not kept in touch and through her solicitors, asked what was to be done about the fact that she was still employed, but no suitable positions were available. Chevler Packaging replied on 11 April 2005 to confirm that the only job available was the cleaning position and that although she had rejected the offer, the job was still open to her. Mrs Humphries claimed that this letter from her employers constituted the ‘final straw’ in a series of contract breaches and resigned.
On 1 June 2005, she confirmed that her resignation letter was also her grievance, thereby seeking to benefit from a further 3 months within which to commence tribunal proceedings for disability discrimination. However, it was not until 15 November 2005 that Mrs Humphries presented her Claim.
The Tribunal rejected her disability discrimination claim on the grounds that it had been presented out of time. It held that time started to run from the 11 April 2005 letter, when her employers had confirmed that the cleaning job was the only suitable alternative position and no further adjustment could be made. The usual time limit for bringing her Claim had been extended from 3 to 6 months, as she had raised a grievance, but there was no continuing act or omission, beyond 11 April 2005 and therefore her complaint of 15 November 2005 was out of time.
Mrs Humphries appealed this decision, asserting that time should run from the date of her resignation and the Claim should be allowed to proceed. She argued that the continuing act by her employer was their continuing to employ her, whilst she was unable to carry out her normal duties and this was a failure to make adjustments. The EAT agreed with the Tribunal and made these comments:
“The failure to make adjustments is an omission. The Respondents are omitting to do what (on the Appellant’s case) they are obliged to do. They are not doing any act, continuing or otherwise.”
“The onus of showing that time should be extended is on the Claimant who seeks the extension to persuade a Tribunal that time should be extended. Something beyond that assertion is required to persuade a tribunal that the ‘just and equitable’ discretion should be exercised.”