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Employer’s policy of keeping decisions under review inadvertently extended time limit for discrimination claim

Employers who have a policy of keeping potentially discriminatory decisions under review should consider whether to change their policy as it may inadvertently extend the time limit for bringing a discrimination claim.

An employer refused to make an adjustment for a disabled employee by transferring her from its Ealing office to another office nearer her home. However, its policy was to keep such decisions under review.

The Employment Tribunal ruled that requiring her to work at Ealing was a provision, criterion or practice that caused her a substantial disadvantage compared to those who did not suffer her disability, and she had made out a case that moving her to a nearer office would be a reasonable adjustment. The employer’s refusal was therefore discriminatory unless it could show otherwise.

The employer argued that the employee had failed to make her claim within three months of the refusal and was therefore out of time. Her response was that the policy of keeping the decision under review meant it was still a ‘live’ decision – it was a continuing act of discrimination, extending over the review period, which was therefore to be treated as completed only at the end of the period. Her claim was therefore in time – even though the policy itself was not discriminatory.

The Employment Appeal Tribunal agreed with the employee, ruling that the discriminatory act continued over the period of potential review, so her claim was in time. It said the policy of keeping such decisions under review meant the discriminatory decision (the employer’s breach of its duty to make reasonable adjustments) was a ‘continuing state of affairs’ during the review period. In this case the duty to make reasonable adjustments had to be satisfied ‘on each day that it remains a duty’.

It rejected an argument that the policy also had to be discriminatory for this to apply.

Recommendation

Employers who have a policy or practice of keeping potentially discriminatory decisions under review should consider whether to change that policy, to avoid the risk of inadvertently extending the time within which discrimination claims can be brought.

Case ref: The Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil & Ors [2013] UKEAT 0097_13_2611

Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

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