In Kerr v Fife Council a primary school teacher, Janet Kerr, who suffers from Parkinson’s Disease, filed a disability discrimination claim alleging that St Leonard’s School had failed to make reasonable adjustments in terms of section 20 of the Equality Act, 2010 by not adjusting her shift pattern to accommodate the symptoms of fatigue associated with Parkinson’s Disease; and by not re-classifying the reason for her absences so that her pay would not be adversely affected.
Both these adjustments had been considered by the school in December 2018 at the latest. The Claimant did not make her claim until May 2019 so therefore out of time. The EJ dismissed her claims, 2 particular factors tipping the balance in favour of the school: (i) the fact that Ms Kerr had been advised in November 2018 that her union/solicitors were not proceeding with a Tribunal claim on her behalf; and (ii) that the school would have been entitled to believe by November 2018 that matters between it and Ms Kerr had been resolved. Ms Kerr appealed.
The EAT allowed the appeal. The EJ had erred in regarding the claim about the shift pattern as being about an “act” rather than an “omission” of the school consisting of a failure to make an adjustment in terms of section 20 EA. That had led to a failure properly to consider and apply the provisions of sections 123(3) and (4) EA.
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