Olenloa v North West London Hospitals NHS Trust UKEAT/0599/11/ZT

Subjects: Reasonable Adjustments – Extension of Time

Facts

C was a Band 6 Clinical Team Leader Nurse working in the Stroke Unit at Northwick Park Hospital. He was signed off sick from 29 September 2010 to date. In his first ET1, filed on 28 January 2011, he alleged that he was disabled and suffered from an ”Adjustment Disorder with mixed anxiety and depressive reaction”. He claimed that R had failed to make reasonable adjustments for him at his place of work and that he had suffered detriment by reason of making a protected disclosure. A PHR was listed to determine whether his claims in his first ET1 in relation to any events prior to the 29 September 2010 were out of time and whether it was just and equitable to extend time. The ET decided that the complaints raised in his first ET1 related to his line managers and any concerns about their treatment of him must have stopped when he went on extended sick leave. It was not just and equitable to extend time as C was aware of the time limits in December 2010 and was able at that time to write a detailed grievance whilst on sick leave.

Therefore it was not an exceptional case where it would be appropriate to extend time. C appealed.

Held

The EAT (Slade J sitting alone) upheld the appeal. C on his evidence before the ET was alleging a continuing omission by R to make reasonable adjustments. He felt that if adjustments were put in place, he could return from sick leave. The ET had not made full findings of fact as to whether the failure to make adjustments were the reason that C was unable to remain at work, and so erred in deciding that R's obligations to C had ended when he went off on sick leave. Similarly, the ET’s decision that it was not just and equitable to extend time for presentation of the complaints was undermined by the failure to make necessary finding of fact that time ran from the date C went on sick leave. The length of delay in presenting the complaints was material to the exercise of the discretion whether to extend time.

Comment

C's representative at the EAT argued that the ET had erred in not making findings of fact at a full merits hearing, referring to the judgments of LJ Mummery in Arthur v London Eastern Railway Ltd [2010] ICR 193 and followed in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 where it was held that the ET had erred in deciding the time point on the basis of legal argument without hearing full evidence. The ET judge in Olenloa had referred to Arthur but it was argued that she had not applied the ratio of the judgment.

The case illustrates that where a claim is based on a continuing state of affairs rather than a series of distinctive events, any decisions on limitation are best taken along with all the evidence at a full merits hearing.