Ability to Proceed

A landmark ruling from the Court of Appeal means that Peter Matuszowicz, a disabled man, has been allowed to continue with his case even though it is being made outside the three-month time limit.

Mr Matuszowicz, whose right arm was amputated above the elbow, began work as a teacher at Hull Prison in September 2003 but struggled with the heavy doors of the Prison.

He was transferred to Everthorpe Prison in July 2005, where the problem persisted. After October that year, he was transferred to lighter duties, and from December 2005he was on gardening leave. In August 2006, Mr Matuszowicz transferred to Manchester City College.

On 4 October 2006, he presented a grievance under the Disability Discrimination Act 1995 to employers, Kingston upon Hull City Council. His grievance was based on several grounds, including the failure to transfer him to suitable employment. The council claimed he was making his point too late.

At a pre-hearing review, an Employment Tribunal found the complaint about failing to transfer him was not out of time, but that decision was reversed by the Appeal Tribunal in January 2008. The Court of Appeal has ruled that the onus was on the claimant to decide when something should have been done about an omission, and to bring a claim within three months of that date, so Mr Matuszowicz will be able to continue with his case.

Rachel Dineley, Employment Partner at lawyers Beachcroft LLP, comments:

“Where the employer has not deliberately omitted to take action, the employer is to be treated as having done so, in the absence of evidence to the contrary. This means an employer can still be accused of discrimination, even if they were not ‘actively’ being discriminatory / doing anything inconsistent. An employee should not, in effect, be penalised for his employer's failure to act.”