In the case of Jobcentre Plus V Jamil, the EAT held that the claimant had brought her claim in time holding that the discriminatory act extended over a period and was not out of time from the date of refusal to make a reasonable adjustment.
The claimant, a disabled employee with a condition of dormant rheumatoid arthritis, which relapsed whilst in employment, had been refused her request for a reasonable adjustment which involved a transfer to a work location nearer to her home. She worked in a Job Centre a considerable distance from home and the combination of travelling to work and childcare commitments and added effect of her arthritis made her slow and tired in the mornings resulting in repeated lateness for work.
The date of refusal was three months prior to her ET1 and so if this date was taken into account then the claimant would have been out of time although there was a policy by the employer to keep its refusal under review. The case considered the facts and whether time ran from the decision to refuse a transfer to another work location or whether the refusal was a ‘continuing act or state of affairs’.
The EAT warned that when considering whether the claimant had brought her claim in time the word ‘policy’ should not be the main focus and that ‘a continuing state of affairs’ was more relevant in considering whether conduct extends over a period.
Referring to Cast v Croydon College, a Court of Appeal Decision, the EAT highlighted that the focus should be on the law as derived from statute and rejected that the continuing act required that the policy of the employer itself had also to be discriminatory (which it was not), clarifying that the continuing duty to make reasonable adjustments had to be fulfilled ‘on each day that it remains a duty’.
