Omission to make reasonable adjustments – time limit

The Court of Appeal has confirmed that, in relation to disability discrimination claims, where there is no deliberate omission by an employer to make a reasonable adjustment, the time limit in which a claim must be brought runs from the end of the expiry of the period within which an employer might reasonably have been expected to do the omitted act.

In Matuszowicz v Kingston Upon Hull City Council, Mr Matuszowicz was employed by the Council as a teacher and worked at Hull Prison from September 2003. Because his right arm had been amputated above the elbow, he had difficulties coping with the heavy doors at the prison. He was transferred to another prison in July 2005, but this did not solve the problem. He was put on lighter duties in October 2005 and, two months later, was put on garden leave. Mr Matuszowicz argued that by August 2005, it was clear that working in the prison sector was unsuitable and that the Council failed in a duty to transfer him to suitable alternative work. He subsequently claimed that, among other things, the Council had failed in its duty under the Disability Discrimination Act 1995 to make reasonable adjustments by not transferring him to suitable alternative employment.

The tribunal treated the failure to make a reasonable adjustment as an act, or continuing acts, running from August 2005 to 1 August 2006, when Mr Matuszowicz was transferred under the TUPE Regulations. The time limit for his claim therefore began to run from August 2006. The Council appealed. The EAT allowed the appeal, holding that the complaint was out of time on the basis that the time limit ran from the one omission to make a reasonable adjustment in August 2005. Mr Matuszowicz appealed to the Court of Appeal.

The Court upheld Mr Matuszowicz's appeal. It confirmed that the Council's failure to find Mr Matuszowicz suitable alternative employment in the period up to his TUPE transfer, although not strictly deliberate, would be treated as deliberate for the purpose of calculating time limits. For a deemed deliberate omission, the time limit runs from the date the employer does an act inconsistent with the omitted act, or, from the end of the period in which the respondent might reasonably have been expected to have done the thing which he omitted to do.

The Court of Appeal acknowledged that this may lead to uncertainty but noted that there was an opportunity within the legislation to extend time if a tribunal considers it just and equitable. In this case, the end of the period in which the Council might reasonably have been expected to make the reasonable adjustment of transferring Mr Matuszowicz to suitable work was August 2006. Therefore, this was the point at which the time limit started to run and Mr Matuszowicz's claim was held to be in time. 

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Identifying harassment under the Race Relations Act 1976

The Employment Appeal Tribunal (EAT) has confirmed that an employer's remark to an Indian employee after her resignation, that they would probably bump into each other in future, unless she was "married off in India", did constitute harassment under the Race Relations Act 1976.

In Richmond Pharmacology v Dhaliwal, the EAT broke down the elements of liability for harassment under the Act as follows:

• Was there unwanted conduct?
  
  
• Did the conduct in question either have the purpose or effect of (i) violating the claimant's dignity or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?
  
  
• Was that conduct on the grounds of the claimant's race (or ethnic or national origins)?

The EAT noted that it will be a healthy discipline for a tribunal in any case brought under the harassment provisions specifically to address each of the elements in its reasons, and to ensue that clear factual findings are made on each element.

The EAT did not accept the employer's argument that the remark could not reasonably have been perceived as a violation of the claimant's dignity. It did note that while it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. The EAT accepted that the facts of this case may have been close to the borderline, which was reflected by the tribunal in its award of £1,000 for injury to feelings.

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New rates for statutory sick pay and maternity, paternity and adoption pay

The revised weekly rates of statutory sick pay and statutory maternity, paternity and adoption pay have been published recently in a draft statutory instrument.

From 6 April 2009, the weekly rate of statutory sick pay will increase from £75.40 to £79.15. The prescribed weekly rate of statutory maternity, paternity and adoption pay is also due to increase from £117.18 to £123.06. 

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Employment Opportunities Bill

Tory MP, Christopher Chope, has introduced a Private Members' Bill into the House of Commons, with a view to promoting "more freedom, flexibility and opportunity" for those seeking employment in the public and private sectors. The Employment Opportunities Bill received its first reading on 10 February 2009 and is due to be read for a second time on Friday 15 May.

The Bill aims to allow individuals to opt out of the national minimum wage (currently £5.73 an hour) and to work for £4.82 an hour - the amount a person on the minimum wage is left with after paying tax. Mr Chope argues that this would assist small businesses, particularly in the retail and hospitality sectors, and boost employment. The Bill also suggests that asylum seekers should be able to work while they wait for the Home Office to determine their case. 

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Joint guidance for employers in recession