C claimed that R had failed to make two reasonable adjustments. The ET held that R had discriminated against C but that C had not brought his claims in time and refused permission to extend time. C appealed.
C was employed as a caretaker from June 2008. He obtained his employment with a misleading application form and references that were not genuine. He concealed from R that he had had a knee replacement operation and left the health boxes on his application form blank. In September 2009 and December 2009 he began to experience knee problems again and was advised by his medical advisers that his condition was permanent. He was told not to lift heavy loads and to take breaks. C did not inform R that his problems were incurable. In February 2010 R asked its employees to fill out a new form setting out their personal details. In this form C told R for the first time that he was disabled. R conceded at the hearing that if they had appreciated what C had written they would have revisited an earlier risk assessment. C claimed that R should have made two adjustments. He stated that R should not have required him to take children to the station or move a large quantity of tables on 24 June 2010. He alleged that these requirements aggravated his knee and that R should have made the adjustment of not requiring him to carry out either of these duties.
The ET held that R could not have been expected to be aware of C's knee condition until February 2010, after which C should have known that R was disabled. The ET held that there was no deliberate omission but that R could reasonably have been expected to adjust his duties to remove the requirement to take children to the station by 09 May 2010 and that time for this part of the claim therefore expired in August 2010. The ET held that, from 24 June 2010 R should have taken steps to arrange C's workload to avoid the lifting tasks. Time therefore expired 3 months after 24 June for this part of the claim. Since C's ET1 was presented on 13 October 2010 his claims were out of time. The ET held that it was not just and equitable to extend time. C appealed.
The EAT considered the equivalent provisions in the DDA 1995 that are now contained in s.123(3) EA 2010. Those provisions provide that (i) where an omission is deliberate, time starts to run from the date R decided upon it and (ii) that a person can be presumed to have decided upon an omission when he does something inconsistent with that omitted act, or when he might reasonably have been expected to do the omitted act. Although HHJ Burke QC expressed his reservations about applying these provisions to negligent omissions he considered himself bound by the Court of Appeal’s decision in Matuszowicz v Kingston Upon Hull Council (see Spencer Keen's article NLJ 10 July 2009) and he upheld the ET’s decision.
The Matuszowicz case is frequently overlooked by discrimination practitioners. Its effects are almost always significant. Where an employer negligently fails to make a reasonable adjustment then time will start to run from the point at which it should have made the adjustment. This applies even if the omission is continuing (see HHJ Burke QC at para. 25).
C did apply to to the ET to extend time. The ET refused the application and C's attack on that refusal, which was based on a perversity argument, failed.
The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2013/0306_12_1503.html