W A Meiklejohn Ms Veronica Finlayson v Represented by Mr M Smith, Solicitor Global Highland Limited — 2017

At a preliminary hearing on 11 January 2017, the tribunal considered whether Ms Finlayson was disabled within section 6 of the Equality Act 2010 and whether the reasonable adjustments complaint, based on an alleged failure to carry out an ergonomic assessment and related adaptations, was out of time. The respondents accepted for the hearing that the first respondent was an employment service-provider and the second respondent a principal for Equality Act purposes. No final remedy was determined because the hearing was confined to these preliminary issues.

The tribunal found that the claimant had tendonitis in her right arm from September 2014, that her GP issued fit notes recommending amended duties in November 2014 and again in January 2015, and that the second respondent largely removed pipette work. It accepted her evidence that the condition substantially affected normal day-to-day activities such as opening jars, lifting, driving, cleaning, writing and using devices, and it also accepted evidence of later symptoms in her left arm. On that evidence, the impairment had a substantial and long-term adverse effect, so the claimant was disabled throughout the relevant period from at least September 2015 to April 2016.

On time bar, the complaint focused on the alleged failure to implement the ergonomic assessment recommended in Dr Fitzsimons' occupational health report of 2 September 2015. The tribunal held that the alleged omission was continuing conduct for the purposes of section 123(3)(a) of the Equality Act 2010 and therefore remained in time when ACAS early conciliation began on 20 May 2016. It also said that, if section 123(4) applied, the relevant date would not have been earlier than 2 March 2016 and the claim would still not have been out of time.

The tribunal distinguished the authorities relied on by the respondents, including Tarbuck v Sainsbury Supermarkets Ltd, and held that while there is no free-standing duty simply to consult or assess, following an express occupational health recommendation to have the claimant's tasks ergonomically assessed was capable of being a reasonable step under section 20(3). It would also have extended time on a just and equitable basis if that had been necessary.