Case law update: failure to make reasonable adjustments

In the case of Fernandes v Department for Work and Pensions (DWP), Ms Fernandes was disabled due to depression, anxiety and back pain. Prior to taking maternity leave, Ms Fernandes had been provided with a special chair for her back pain. However she was not provided with a chair on her return from maternity leave or subsequently when working from home, despite her requests for an ergonomic assessment. There was also an issue with her remote access to her work IT system, which meant she could not carry out a substantive part of her role.

Ms Fernandes went off sick with work-related anxiety and depression, and continued to complain the ergonomic assessment had not been completed. She returned to work for 12 days before taking more sick leave. The ergonomic assessment was not completed in that time and Ms Fernandes brought claims including for failure to make reasonable adjustments.

Time limits

A discrimination claim must normally be brought within three months of the act or omission complained of. Where a claim is focused on an omission (as Ms Fernandes' claim was), it can be difficult to identify the date on which time begins to run. The Tribunal found that Ms Fernandes had presented her claim out of time and that there was no just and equitable basis on which to extend time. Ms Fernandes appealed to the EAT on four grounds. This summary focuses on whether the Tribunal failed to correctly identify when time began to run for Ms Fernandes to bring her claim.

EAT decision

The EAT allowed the appeal and remitted the claim to the same Tribunal. The EAT also issued guidance on time limits for bringing reasonable adjustments claims, where the employer has failed to alleviate a disadvantage by inaction rather than by taking a positive decision not to act. In such cases, the date on which time starts to run can be independent of the date of the breach of the duty. In order to determine whether a claim has been brought in time, the Tribunal must identify:

• the start of the disadvantage
• when it would be reasonable for the employer to have taken steps to alleviate the disadvantage
• whether the employer took action that was inconsistent with the duty to make reasonable adjustments. If it did, time would start to run at that point
• if the employer did not take any action, but instead failed to act, when it would be reasonable for the claimant to conclude that the employer is not going comply with the duty to make reasonable adjustments. For 'inaction' cases, time would start to run at this point
• if applicable, whether there are any reasons why it would be just and equitable to extend time, where the time limit has been missed

In Ms Fernandes' case, the Tribunal had not considered when the reasonable employee would conclude that the duty to make reasonable adjustments was not going to be complied with. It would be at this point that time would start to run.

Learning points

An important preliminary question in any litigation is whether the claim has been brought in time. In the context of a claim for the failure to make reasonable adjustments by omission, it can be difficult to identify the correct date for time limit purposes. This claim highlights the importance of identifying the point at which the employee would reasonably have realised the employer was not going to comply with the duty to make reasonable adjustments.

For more information or advice, please contact Rory Jutton in our Employment team on 0117 314 5286, or complete the form below.