Is It Just and Equitable to Extend Time for Bringing a Disability Discrimination Claim Where No Explanation for Delay Has Been Given?
Yes, held the Court of Appeal in the recent case of Abertawe Bro Morgannwg University Local Health Board v Morgan.
It is not essential for a claimant to set out the reasons for a delay and the court is entitled to take into account any factors that it considers relevant.
The Facts
The Claimant, Ms Morgan, was employed by Abertawe Bro Morgannwg Local Health Board (the Board). Ms Morgan suffered from a depressive illness which the Board accepted amounted to a disability, and as a result she was absent from work from July 2010. In August 2011 the Board's occupational health adviser assessed that Ms Morgan was unfit to work in any capacity, and in December 2011 she was dismissed.
In March 2012 Ms Morgan pursued a claim against the Board for disability discrimination, alleging that there had been a failure to make reasonable adjustments in respect of her disability.
The Employment Tribunal and Employment Appeal Tribunal (EAT)
The Employment Tribunal (ET) held that the Board had failed to comply with its duty to make reasonable adjustments by redeploying Ms Morgan to another role and that it was just and equitable to extend the three month time limit in which Ms Morgan could bring her claim.
The Board appealed to the EAT who found that the ET had failed to consider all of the relevant issues and remitted the claim back to the ET to reconsider. The ET again held that there had been a breach of the duty to make reasonable adjustments and that it was just and equitable to extend the time available to the employee to pursue that complaint.
A second appeal to the EAT was dismissed and the Board appealed to the Court of Appeal.
The Court of Appeal
The Court upheld the ET's decision and held that the Board had breached its duty to make reasonable adjustments in the period leading up to August 2011. Time started to run out for bringing a claim when it became clear to Ms Morgan that the Board would not comply with its duty. This was in August 2011.
In deciding whether it was just and equitable to allow an extension to time, the Court held that their discretion in this regard is wide. Particular weight was given to the fact that Ms Morgan was ill and that her ill-health was likely to have an impact on her decision making at the relevant time.
The extension to time was therefore just and equitable and the appeal was dismissed.
Best Practice
The ET can consider a number of different factors when weighing up whether it is just and equitable to allow a discrimination complaint to proceed notwithstanding that the deadline to pursue the claim has been missed. Employers should fully respond to any claims pursued by employees and be prepared to present any evidence as to why it would not be just and equitable for the claim to proceed.