England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE MCMULLEN
UKEAT/0409/07

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 February 2009

Lord Justice Lloyd:

1. The appellant, Mr Matuszowicz, was employed as a teacher by the respondent, Hull City Council, until 1 August 2006. It is common ground that he is disabled, for the purposes of the Disability Discrimination Act 1995, his right arm having been amputated above the elbow. On 15 September 2003 he began work for the respondent at Hull Prison. Because of his disability, he had a problem coping with the heavy doors at the prison. For a time he worked at another place. Eventually in July 2005 he was transferred to Everthorpe Prison where it was hoped that the problem would be less. This turned out not to be so. He contends in his claim on form ET1 that by August 2005 it was clear that working in the prison sector was unsuitable because of his disability, and that the respondent then came under a duty to transfer him to suitable alternative work, but that the respondent failed so to transfer him and he remained in the respondent's employment. In fact, from October 2005 he was transferred to lighter duties, and from December 2005 he was on gardening leave. On 1 August 2006 the respondent transferred the relevant undertaking to Manchester City College and the appellant was transferred to that employment under TUPE. He presented a grievance to the respondent on 4 October 2006 in relation to matters occurring up to 31 July. After a premature attempt to claim, he presented a claim to the Employment Tribunal on 31 January 2007. He put forward several grounds of claim but the only claim with which we are concerned is the failure to transfer him to suitable employment and the enforced transfer to unsuitable employment by another employer on 1 August 2006.
2. The respondent took the point in its response, on form ET3, that the complaint was out of time and invited the Employment Tribunal to strike the claim out accordingly. A pre-hearing review was held to consider this issue. At that stage the appellant was represented by his union, the NUT, while the respondent was represented by Counsel, Mr Siddall, who also appeared before us. Mr Siddall told us, from his recollection, that there had been a direction from the Employment Tribunal which would have permitted either party to call evidence in relation to the points arising if so desired. In fact neither side called any oral evidence, though a small bundle of documents, including the appellant's grievance forms, was before the tribunal.
3. The pre-hearing review was held on 13 June 2007 before Mr Hildebrand as Chairman sitting alone. The determination, dated 21 June 2007, was that three out of the four grounds of complaint were out of time but the one which I have already mentioned was not out of time. It was held to be in time on the basis that it extended over a period of time and was expressly stated to continue up to the time of the transfer away from the respondent.
4. The respondent appealed against the ruling refusing to strike out this claim. Later the respondent applied for permission to amend the grounds of appeal to take another preliminary point, namely that the respondent was not the proper person to which the claim should be directed, if any claim was valid, because of the transfer of employment under TUPE. On 19 October 2007 the Employment Appeal Tribunal (His Honour Judge Richardson) granted permission to make this amendment to the notice of appeal. This point had been taken in the respondent's ET3 response, at paragraph 5.7, but it had not been dealt with at the pre-hearing review in the Employment Tribunal, the respondent not having sought to argue it at that stage.
5. The appeal came before the Employment Appeal Tribunal, His Honour Judge McMullen sitting alone, on 28 January 2008. He allowed the appeal, holding that the surviving claim should have been decided on the same basis as one of the claims that was struck out, that the allegation was of a breach of duty in August 2005, and that on a consideration of the "simple pleaded case", it was clear that the complaint was out of time, being about a one-off act of omitting to make a reasonable adjustment in August 2005. Judge McMullen referred to the TUPE point but said that it could depend on issues of fact, and that if it had arisen he would have left it for the Employment Tribunal to decide.
6. The appellant appeals against the striking out of the one surviving claim, with permission to appeal granted by Lord Justice Mummery. The respondent seeks to cross-appeal, if necessary, on the TUPE transfer point, for which it requires permission to appeal and has applied for it at the hearing of the appeal.
7. In the course of the hearing of the appeal, having heard Mr Siddall's submissions in favour of the grant of permission to appeal, we indicated that we would not grant such permission. The point is not one of jurisdiction, as the time point is, but of identifying the correct respondent to the proceedings. Mr Siddall submitted that the point was of general importance, and that it would be helpful to have a ruling from the Court of Appeal on the point. He said that it had been covered, and decided in the sense for which he would contend, by the Court of Appeal in Northern Ireland. However, it seemed to me that Judge McMullen was perfectly entitled, as a matter of case management, to say that the point should be argued first at first instance in the Employment Tribunal and only then, if appropriate, tested on appeal in the Employment Appeal Tribunal and in this court. If it is such an important point, it would be highly undesirable for the Court of Appeal to rule on what may be by no means a straightforward point without the assistance of reasoned decisions from the Employment Tribunal and the Employment Appeal Tribunal in turn.
8. Turning to the appeal, it is necessary to consider how the complaint is formulated. I have summarised it but I should quote the exact terms used in the appellant's ET1 form:

"The respondent failed to transfer the claimant to suitable alternative work once it was clear that working in the prison sector was unsuitable (at least as early as August 2005) due the claimant's disability and effectively forced the claimant to TUPE transfer (1.8.06) to unsuitable employment despite the respondent being in the full knowledge of the unsuitable nature of the employment."

9. In the respondent's ET3 form it contended at paragraph 5.3 that the complaint was out of time but it did not refer to any particular dates in the course of the appellant's employment other than October 2005 when, as I mentioned, he was transferred to lighter duties, 12 December 2005, which had been relevant to one of the complaints of discrimination which was struck out by the Employment Tribunal, and 1 August 2006, the date of the transfer under TUPE.
10. The complaint therefore alleges that the need for alternative suitable work was clear from August 2005 and that from then on the respondent failed to make suitable arrangements. How does that fit with the legislation? It is a case alleging failure to comply with a duty to make reasonable adjustments under section 3A(2) and 4A of the 1995 Act. By virtue of section 4A(3)(b) the respondent was not under the relevant duty until it knew, or reasonably should have known, that the appellant, as a disabled person, was, or was likely to be, affected as mentioned in section 4A(1). That accounts for the need to allege that the employment in a prison was known not to be suitable.
11. The basic provisions as regards unlawful discrimination on disability grounds on the part of employers are to be found in Part 2 of the 1995 Act. By section 4 it is unlawful for an employer to discriminate against a disabled person whom he employs in a number of respects, including in the opportunities afforded for promotion, transfer, training or receiving any other benefit and in subjecting him to any other detriment. Section 4A imposes the duty to make adjustments:

"(1) Where

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."

12. In turn, section 3A sets out the meaning of discrimination for these purposes. Subsection (2) is as follows:

"(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."

13. That duty, the nature of which is central to the disability discrimination legislation, is altogether different from the duties imposed by other anti-discrimination legislation. It has no counterpart in for example, the Race Relations Act and other such legislation. Mr Toms, for the appellant, pointed out that the duty to make reasonable adjustments is one which it is inherently possible that an employer may fail to comply with by way of either deliberate conduct or inadvertent omission. Decided cases establish that the subjective attitude of the employer is irrelevant to the question of whether the duty to make the reasonable adjustments has been complied with or not. In Spence v. Intype Libra Limited, decided by the Employment Appeal Tribunal on 27 April 2007, UKEAT/0617/06, the Tribunal, Elias J presiding, put it succinctly at paragraph 38:

"The issue … is whether the necessary reasonable adjustment has been made; whether it is by luck or judgment is immaterial."

14. The possibility of an omission being something which ought to be subject to anti-discrimination legislation had been considered in the previous legislation and is the subject of express provision which has been copied in the 1995 Act. Thus in section 68(1) of the 1995 Act, "act" is defined as including a "deliberate omission". So far so good; that provision may well not give rise to any particular problems in relation to the other anti-discrimination regimes. In relation to the 1995 Act, however, the duty to make reasonable adjustments does give rise to the possibility that there may be inadvertent and non-deliberate omissions on the part of the employer which are breaches of the duty to make reasonable adjustments and therefore acts of discrimination. No problem arises in relation to the definition of acts of discrimination in this respect. The problem arises when one considers the provisions defining the period within which proceedings must be brought. Those are to be found in paragraph 3 of Schedule 3 to the 1995 Act. It is as follows:

"3(1) An employment tribunal shall not consider a complaint under section 17A or 25(8) unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3) For the purposes of sub-paragraph (1)

(a) where an unlawful act is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person in question decided upon it.

(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission

(a) when he does an act inconsistent with doing the omitted act; or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."

15. The provisions of paragraph 3(3)(c) and paragraph 3(4) pose a question on which, so far as I am aware, there is as yet no authority. The question is whether the effect of paragraph 3(4) is to treat as a deliberate omission something which, but for that paragraph, could not properly be described as deliberate. In terms of identifying an act of discrimination giving rise to a substantive remedy it is unnecessary to consider whether an omission to comply with the duty to make reasonable adjustments is deliberate or not. Either the duty is complied with or it is not. The classification of the omission, if it is an omission, becomes necessary only for the purposes of the time limit under paragraph 3 of Schedule 3. Mr Toms for the appellants submitted that it would be wrong to read the paragraph as dealing with anything other than that which is properly described as a deliberate omission, in that it defines and restricts the ability of a claimant to complain about something which, whether deliberate or not, may be an act of discrimination. As such, he submitted, it ought not to be construed more narrowly than is necessary or appropriate. In particular, he argued that it would be surprising, to say the least, if in a case in which the employer had been failing, but not deliberately, to comply with its duty to make reasonable adjustments, and in which that failure was continuing, an artificial date might be imposed by reference to which a complaint had to be started within a three month period, at a time when the duty was still being broken.
16. Mr Siddall, on the other hand, submitted that the purpose of paragraph 3 of Schedule 3 is to define a starting point for the period of three months within which complaints can be presented, and that it would be bizarre for the paragraph to overlook what might be one of the more major categories of complaint of breach of the duties imposed by the Act. Furthermore, he submitted that a true reading of paragraph 3(4) can only lead to the conclusion that, in the circumstances described in that sub-paragraph, something which may not be truly a deliberate omission is to be treated as a deliberate omission as from a particular date.
17. The text of paragraph 3 of Schedule 3 appears, in substantially identical form, in other anti-discrimination legislation. In those cases it probably gives rise to no particular issue, or at any rate not to the issue that we have to consider, because inadvertent omissions will not be acts of discrimination. In the present case it is a real issue and it might have been better if the language of the paragraph had been adapted to the 1995 Act so as to fit more easily with the wider scope of acts of discrimination under that Act. Be that as it may, we have to construe the words of the Act as they stand.
18. Paragraph 3(1) takes as its starting point the time when the relevant "act" is "done". This requires supplementary provisions in a number of respects. One of those is how it applies to the category of acts that consists of omissions.
19. Paragraph 3(3)(c) supplies this, in terms of deliberate omissions, and takes as the relevant moment the time when the person in question decided upon the omission. Clearly that cannot readily apply to an omission which happened through inadvertence and was not in fact decided upon. However sub-paragraph (4), while it allows for evidence as to when the person in question did decide on the deliberate omission, goes on to define, in the absence of such evidence, when the person is to be taken as having decided upon the omission. There are two alternatives. The first, when he does an act inconsistent with doing the omitted act, is fairly self explanatory. It may or may not be the case that, by doing the inconsistent act, the person in question realised that he was irrevocably omitting to do the omitted act, but it is fair in that situation to treat him as having made a deliberate omission because it is no longer open to him thereafter to do the omitted act. It is understandable that time should run from that moment.
20. The second option, however, is not so self explanatory. It presupposes that the person in question has carried on for a time without doing anything inconsistent with doing the omitted act, and it then requires consideration of the period within which he might reasonably have been expected do the omitted act if it was to be done. In terms of the duty to make reasonable adjustments that seems to require an inquiry as to when, if the employer had been acting reasonably, it would have made the reasonable adjustments. Necessarily, the employer has not made the reasonable adjustments, since otherwise the complaint would not arise, but it has done nothing inconsistent with making them in future, since otherwise the matter would be within paragraph 3(4)(a). In this case, however, the person in question is to be treated as having decided upon the omission as a deliberate omission at the time when he might reasonably have been expected to have done the thing omitted. That is by no means a straightforward enquiry and it is certainly not an enquiry that is at all the same as enquiring whether he did in fact decide upon doing it at that time.
21. This analysis seems to me to lead clearly to the conclusion that, in the context of this legislation and of the duty to make reasonable adjustments, even if the employer was not deliberately failing to comply with the duty, and the omission to comply with it was due to lack of diligence, or competence, or any reason other than conscious refusal, it is to be treated as having decided upon it at what is in one sense an artificial date. Certainly it may not be a date that is readily apparent either to employer or to employee. The date is imposed for the purposes of starting time running under the enforcement provisions of the 1995 Act. I therefore accept Mr Siddall's submission for the respondent that the regime created by Schedule 3 paragraph 3 applies not only to that which is objectively a deliberate omission but also to that which is not truly a deliberate omission but is treated as one, as of a given date, for the purposes of this paragraph.
22. In the Employment Tribunal the complaint of failure to make reasonable adjustments was treated as an allegation of an act, or of continuing acts running through from August 2005 up to 1 August 2006. It seems to me, with respect, that that is not the correct analysis. Rather, a failure to make adjustments, at any rate in this type of case, is an omission, not an act. There may of course be positive acts that are inconsistent with the duty but the failure to make the adjustments is in its nature an omission. In Humphries v Chevler Packaging Limited, UKEAT/0224/06, 24 July 2006, decided by the Employment Appeal Tribunal, His Honour Judge Reid QC sitting alone, said at paragraph 24 "the failure to make adjustments is an omission. The respondents are omitting to do what (on the appellant's case) they are obliged to do. They are not doing any act, continuing or otherwise." That was a case in which the respondent employer, after lengthy dealings with the appellant or her representatives, replied on 11 April 2005 to a letter from her solicitors asking for its intentions in respect of the availability of suitable employment, by saying that the only job available was a cleaning job which had been offered to her and which she had refused but which was still open to her. She contended that that was not a compliance with the duty to make reasonable adjustments and on 16 May she resigned. She later issued a complaint in the Employment Tribunal. If time ran from 16 May 2005 then her complaint was in time but if it ran from 11 April 2005 the complaint was too late. Judge Reid held that the latter was the position because on 11 April there had been a definitive refusal to make any other reasonable adjustments than offering the job as a cleaner which was not accepted to be a reasonable adjustment. The appellant contended that time ran from the time when she left the employment because the duty to make the adjustments continued until then, but the judge held that the letter of 11 April was a definitive refusal and was, albeit an omission, a deliberate omission decided on as at that date and, in effect, that paragraph 3(4)(a) applied. At paragraph 25 he said this:

"There is no requirement of motive in paragraph 3(3) and (4) as is suggested by the Claimant. Under paragraph 3(3)(c) the question is whether there has been a decision not to do something. If there has been an inconsistent act, then (in absence of evidence to the contrary) the paragraph provides that the decision is to be taken as having been made when the inconsistent act is done. If there is no inconsistent act, then the person is taken (to paraphrase) to have decided upon the omission at the end of a reasonable time. Thus, in the absence of evidence to the contrary, if there is no evidence of a deliberate decision, a deliberate decision is imputed to the person."

23. Mr Toms also showed us a passage from the speech of Lord Griffiths in Barclays Bank v Kapur [1991] ICR 208 at 213 relating to the ambit of "deliberate omission". It seems to me, however, that, valuable as that observation is in the context of the race relations legislation, it is of less assistance under the 1995 Act because of the existence of the duty to make reasonable adjustments and the consequent much greater likelihood that there will be omissions which will constitute acts of discrimination under that Act.
24. Mr Toms submitted that it would be highly unsatisfactory to construe the paragraph as imposing a start date for the three month period at a time which the employer and the employee might well not realise that it had occurred, as might be the case under paragraph 3(4)(b), and that it was also unsatisfactory to impose a starting date for the three month period at a time when the employment was still continuing and when the employer might well still be trying, even if not as diligently as it should, to make the necessary adjustments, and the employee might be happy to go along with that. I see some force in that but it seems to me that it is part of the policy of the legislation in the area of discrimination to impose relatively early cut off dates for claims of discrimination, many of which are brought at a time when the employment relationship is still subsisting. Moreover, the issue of uncertainty, which I accept is real and may be more substantial in this legislation than in other anti-discrimination legislation, is considerably alleviated by the provisions of paragraph 3(2) which creates the opportunity for an extension of time if it would be just and equitable. That provision is capable of accommodating situations in which the employee does not realise that the start date has occurred or, for example, the employer's decision has not been communicated to him. It could also avoid a problem which might otherwise arise if the employer were to seek to lull the employee into a false sense of security by professing to continue to consider what adjustments it ought reasonably to make, at a time long after the moment has arrived under paragraph 3(4)(b) when the employee is entitled to make a claim and time has started to run for the making of such a claim.
25. Going back to the facts of the present case, I would respectfully differ, for reasons already given, from the approach of the Employment Tribunal, that the allegation was of a continuing act. Likewise, and with equal respect, I disagree with Judge McMullen's analysis of the claim as "a one off act of omitting to make the reasonable adjustment to transfer him to employment away from the prison, made in August 2005" (see his paragraph 31). I agree with him that it is an omission but I do not read the allegation as being of a one off act of omission done in August 2005. Rather, it seems to me that the allegation is of a continuing omission, and one which continued until 1 August 2006. The relevance of August 2005 is that that is said to be the date, or the latest date, by which the duty to make the reasonable adjustments by way of finding alternative employment arose. However, the duty and the failure are alleged to have continued up to and including 1 August 2006. It is common ground that, if the start date did not occur until 1 August 2006, the claim was in time.
26. The respondent did not assert any particular intervening act or event as relevant under paragraph 3(4), but the Employment Tribunal had before it a number of documents that were relevant and Judge McMullen also referred to them. It is therefore appropriate to make some reference to them at this stage.
27. The documents include the grievance letter from the appellant dated 18 September 2006 and the respondent's answer dated 4 December 2006. They also include letters during the appellant's employment: one dated 27 March 2006 from the NUT to the respondent, a memorandum dated 13 April 2006 within the respondent, copied to the appellant, a letter dated 11 May 2006 from the respondent to the union and a letter dated 26 July 2006 from the union to the respondent. The letter dated 27 March 2006 urged the respondent to address more actively than it had up to then the question of the adjustments that ought to be made to allow for the appellant's position. The memorandum dated 13 April 2006 is a report of an attendance by the appellant at the occupational health unit, arranged recently by the respondent. The reported conclusion was that the appellant should be assessed with a view to redeployment to a post more suitable than one in the prison service. The letter dated 11 May 2006 appears to show that the respondent had not come to a final conclusion as to whether it was reasonably possible for the appellant to return to work at Everthorpe Prison, but also that the respondent wished to know whether the appellant was interested in, or preferred, redeployment to another post. The appellant's grievance letter asserts that twice in the early part of July 2006 it was stated on behalf of the respondent that the appellant would be redeployed within its organisation, and not transferred to Manchester City College. On 26 July 2006 the union's letter to the employee of the respondent who was responsible for the appellant's case urged that the appellant be excluded from the transfer to Manchester City College and referred to an understanding that the respondent's Education Manager had circulated schools by email regarding the availability of the appellant for redeployment. However, the response to this, as reported in the grievance letter, was that on 28 July the relevant employee of the respondent telephoned the appellant to report that she had been told not to take any further steps in relation to the appellant and that it was too late to do other than transfer him to Manchester City College.
28. So far as the history of the case for twelve months from August 2005 is discernible from those documents, it seems clear that an accusation could be made against the respondent that it had been dilatory and inadequate in its efforts to comply with the duty to make reasonable adjustments once the problem had become clear by August 2005. However it does seem that, at any rate during the period from April to July 2006, the respondent was at least representing to the appellant and his representatives that the question of his possible deployment rather than his transfer to Manchester City College as part of the workforce at Everthorpe Prison was being taken seriously. There might be a case for saying that, by 28 July 2006, the respondent had decided definitively that it was not prepared to make any further efforts. It may be that that was a date at which the respondent had decided to omit to comply with its duty so as to be relevant under Schedule 3 paragraph 3(4)(a). Whether any earlier date could be relevant under paragraph 3(4)(b) would depend on an analysis of the facts. It is ironical that, in the context of time limits, it would be in the interests of the respondent to allege that it might reasonably have been expected to have dealt with the position much earlier than it actually did, whereas it would be in the appellant's interests to assert that it would have taken as long as it in reality did, so as not to give rise to an earlier date as the starting date under Schedule 3 paragraph 3.
29. That review of the facts, so far as known, suggests that the respondent might be able to rely on a starting date on 28 July 2006. If that was the correct date, then the appellant's claim was out of time by some three days. Clearly a claim for an extension of time under Schedule 3 paragraph 3(2) might well have a good chance of succeeding where the delay is of that order. Mr Siddall submitted that the appellant had had his opportunity of putting forward such evidence as he wished to rely on in support of a claim for an extension under paragraph 3(2), and had failed to put forward any such evidence, and that he should not be allowed any further such opportunity. However, it seems to me relevant that the respondent did not in its ET3 form assert 28 July 2006, or any other date, as being the date on which the relevant period started to run, so that the appellant was not on notice that he had to be prepared to meet any particular case to be relied on by the respondent. It is well established that details of a claim to an employment tribunal asserted without professional assistance are not to be too strictly or rigidly interpreted. The same may not necessarily apply to a response form, put in on behalf of a respondent which is professionally represented. The ET3 form shows that the respondent was well aware of the relevant issues and legal factors and could perfectly well have advanced any alternative case it wished to put forward so as to give the appellant fair notice of the case he had to meet as regards time limits.
30. Coming back to the substance of the case as a whole, on the issue which was before the Employment Tribunal and in turn the Employment Appeal Tribunal, it seems to me that the claim as formulated asserted a case of continuing omission to comply with the duty to make reasonable adjustments. On the terms of the claim as put forward, that omission continued until 1 August 2006 and it cannot be said that there is any earlier date, on the basis of that assertion, from which the time could be taken to have run. It may be that the respondent could have asserted an intervening date from which time would have run, on the basis of Schedule 3 paragraph 3(4)(a) or (b). A possible candidate under paragraph 3(4)(a) seems to be 28 July 2006. Whether there could be a plausible candidate for an earlier date under paragraph 3(4)(b) is unclear and not without difficulty for the respondent. No case of that kind was advanced in the form ET3 or put before the Employment Tribunal or the Employment Appeal Tribunal. For my part I would allow the appellant's appeal and direct that the claim continue in relation to the one allegation permitted by the Employment Tribunal.
31. If the issue of time limit were regarded as still open before the Employment Tribunal, then on remission the respondent could assert an earlier cut-off date under paragraph 3(4), but in that case it ought also to be open to the appellant to put forward a corresponding claim for an extension under paragraph 3(2). However, it seems to me that it would not be appropriate to allow the issue of time limit to be re-litigated before the Employment Tribunal. The issue was taken by the respondent as I have described, with the opportunity on both sides to put forward such evidence as either party wished, and the respondent had, of course, the opportunity to rely on any intervening date under paragraph 3(4). Issue was joined, with the result that the Employment Tribunal reached, in my judgment correctly. It seems to me that, that being so, the issue should now be regarded as having been decided once and for all, and as not remaining open to be revisited on a different basis at the instance of the respondent. The question of the relevance of the transfer to Manchester City College remains open, of course, as I have said, but in my judgment it should not now be open to the respondent to have a second attempt at getting the one surviving claim dismissed as not having been brought within time.
32. For those reasons I would allow this appeal and remit the matter to the Employment Tribunal to proceed on the merits, including a consideration of the relevance of the transfer to Manchester City College, but not to include any re-addressing of the question of whether the claim was brought within time.

Lord Justice Jacob

33. I agree.

Lord Justice Sedley

34. I too agree with the judgment of Lloyd LJ and would make the order he proposes.
35. The point of general importance which emerges from his judgment, and is worth stressing, is that the effect – unfortunately not a readily obvious one – of paragraph 3 of Sch 3 to the 1995 Act is to eliminate continuing omissions from the computation of time by deeming them to be acts committed at a notional moment. The evident purpose is to prevent a situation of neglect from dragging on indefinitely, and to do this, where no overtly inconsistent act has set time running, by putting the onus on the claimant to decide when something should have been done about the omission and to bring his or her claim within 3 months of that date.
36. For obvious reasons this can create very real difficulties for claimants and their advisers. But there are at least two ways in which the problem may be eased.
37. One is that claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer's attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission.
38. The other is that, when deciding whether to enlarge time under paragraph 3(2), tribunals can be expected to have sympathetic regard to the difficulty paragraph 3(4)(b) will create for some claimants. As Lloyd LJ points out, its forensic effect is to give the employer an interest in asserting that it could reasonably have been expected to act sooner, perhaps much sooner, than it did, and the employee in asserting the contrary. Both contentions will demand a measure of poker-faced insincerity which only a lawyer could understand or a casuist forgive.