Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant worked for the respondent as a Universal Credit Agent. She was disabled by reason of depression and anxiety as well as back pain. She was provided with a special chair for the back pain but following her return from maternity leave it was not available. This arose in January 2020, and it was advised that an ergonomic assessment should take place – this did not take place before the Covid lockdown at which period the claimant had to take leave to care for her medically vulnerable child. Whilst working from home in August 2020 she again requested the ergonomic assessment.
The issue arising was the time limits and how they would apply to the application for disability discrimination and when time begins to run.
Outcome:
The Tribunal at first instance found that the time limits had not been adhered to on the basis that it was held that time began to run from when the respondent would be expected to make the adjustment. However, the EAT in examining this point found that time does not begin to run when there is a duty upon the respondent but rather when the employee would conclude that the duty had not been complied with. In this exercise, it is for the Tribunal to consider that objective from the facts available rather than just the claimant’s state of mind. Bearing this in mind there was a difference between the date at which the respondent would have been expected to make the adjustments and the time at which the claimant would have felt that the duty had not been followed. As a result, the appeal was allowed.
Practical Guidance for Employers:
This case gives clarity to a particularly narrow point but one which is important when it comes to time limits in disability discrimination claims. Those involved in the Tribunal proceedings should bear in mind that it is from a time in which the claimant is aware, from the facts, that the duty has not been complied with rather than it being from the time at which there was a duty. This is likely to assist claimants who may be going through a process of trying to receive adjustments relating to their disability but it is taking a period of time for that to be brought in place.
The full case is available here:
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-m-fernandes-v-department-for-work-and-pensions-2023-eat-114
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