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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 (28 March 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/640.html Cite as: [2018] EWCA Civ 640, [2018] ICR 1194, [2018] WLR(D) 197, [2018] IRLR 1050 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE SHANKS
UKEAT/0320/15/DM
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE LEGGATT
____________________
ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD |
Appellant |
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- and - |
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MORGAN |
Respondent |
____________________
Rachel Crasnow QC (instructed by Royal College of Nursing) for the Respondent
Hearing dates: 14 February 2018
____________________
Crown Copyright ©
LORD JUSTICE LEGGATT:
Factual background
History of the proceedings
Ground 1: the reasonable adjustments claim
"where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
In its second judgment the employment tribunal found that the disadvantage to the claimant of being unable to work in her existing role could have been overcome by offering her a different role and that, on the balance of probabilities, there were other suitable roles available during the period from April to August 2011 which the Board could have offered the claimant. The tribunal found that in these circumstances there had been a failure by the Board to comply with its duty under section 20 of the Equality Act.
"(1) … proceedings on a complaint … may not be brought after the end of—
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable.
…
(3) For the purposes of this section—
(a) conduct extending over a period is to be treated as done at the end of the period;
(b) failure to do something is to be treated as occurring when the person in question decided on it.
(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—
(a) when P does an act inconsistent with doing it, or
(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it."
"9.6 The respondent would have a reasonable time in which to deal with the process of making adjustments. However at some point it would become clear to the claimant probably by June/July 2011 that the respondent was restricting its approach to redeployment. Firstly by not using the redeployment register and secondly by not searching outside the mental health directorate. Further it would have been clear to the claimant that the respondent was not taking up Dr Tidley's offer to evaluate roles for the claimant.
9.7 Therefore in terms of reasonable adjustments we judge that time begins to run by no later than the beginning of August 2011. On that basis the claimant's claim should have been presented by 31st October 2011."
The just and equitable discretion
The employment tribunal's findings
"9.8.6.1 The claimant is someone that would lose a good claim in circumstances where she had been very ill and had been embroiled in the respondent's processes. The claimant was using her limited mental resources in coping with those processes whilst ill.
9.8.6.2 The respondent would suffer relatively little prejudice in evidential terms. A significant part of the delay in dealing with its own process was the responsibility of the respondent and not the claimant.
9.8.6.3 We do not consider that the support of the trade union in those circumstances is sufficient to unbalance the equation in the respondent's favour."
"17.1.1 The extent of the claimant's illness as it developed up to her dismissal.
17.1.2 The attempts to resolve matters internally via the grievance process.
17.1.3 The delays in that grievance process some of which can be laid at the door of the respondent and are without explanation.
17.1.4 The state of the claimant's health after her dismissal on 15 December 2011."
The tribunal also took into account other matters – including its view that little prejudice was caused to the Board by the delay and what it considered would be the substantial prejudice to the claimant if she was unable to pursue a well-founded claim – in again reaching the conclusion that it was just and equitable to extend time.
Grounds 2 and 4: approach to the reasons for delay
Grounds 3 and 5: decisions to extend time
"9.8.3.1 Whilst the grievance did not relate directly to the question of making reasonable adjustments, it was clearly connected to the claimant's sickness absence.
9.8.3.2 The claimant's complaints were about the respondent's treatment of her in relation to her disability.
9.8.3.3 In our judgment this would have made it very difficult for the claimant to disentangle the specific elements of this particular process from those matters dealt with in the absence reviews.
9.8.3.4 That in turn would make it difficult (leaving aside for the present the fact that she was represented) for the claimant to realise that a reasonable adjustments claim needed to be made as there still seemed to be an attempt to resolve matters internally."
The tribunal went on (at para 9.8.4) to recognise that the claimant was represented by her trade union, but said:
"However those representing the claimant would have had to recognise the limitations caused by the claimant's health; e.g. the claimant was unable to engage in appeal meetings with the respondent."
"We accept that pursuing the grievance alone is not a reason for us to conclude that time should be extended. However, where the claimant is properly pursuing internal processes with a real intention that matters be resolved and with delay caused by ill-health and by the respondent for reasons which are not explained, those are matters properly to be put in the balance."
I do not think it unreasonable for the tribunal, in assessing the extent to which the claimant's delay in bringing her claim should be regarded as culpable, to have attached some weight to the fact that, throughout the period of delay, the claimant was pursuing an internal process which could have resolved many of her complaints, albeit not the particular complaint of harassment by Ms Keighan which the tribunal upheld. I have already indicated that the tribunal's assessment of the claimant's declining state of mental health was a matter to which it was entitled to give weight. While I agree with HHJ Shanks that the decision to extend time in relation to the harassment claim was even more generous to the claimant than the decision in relation to the reasonable adjustments claim, I also agree with him that no basis has been shown for interfering with the tribunal's exercise of its discretion. In particular, the tribunal's conclusion cannot be characterised as perverse nor as based on matters which it was not entitled to take into account.
Conclusion
Endnote
LORD JUSTICE BEAN: