Do time limits for the purposes of whistleblowing detriment claims start to run when a decision is made, or when it is communicated to a claimant?
That question, described as an “interesting point of law” by the Employment Appeal Tribunal, was recently answered in the case of McKinney v London Borough of Newham [2014] UKEAT/0501/13/LA.
Background
The Claimant was employed by the London Borough of Newham as a Principal Finance Officer. He brought a claim before the Employment Tribunal alleging, amongst other things, that he had been subjected to detriments as a result of making protected disclosures.
On a strike out application, the Employment Tribunal had to ask itself when the three month limitation period began to run. The two options were either 8 October 2010, when the employer reached its decision to reject the Claimant’s grievance, or 14 October 2010, when the Claimant actually learned of the decision by receiving the Respondent’s grievance appeal outcome letter.
Appellant’s submissions
The Appellant contended that time only began to run from the date when the Claimant had knowledge of the grievance appeal outcome, relying on the decision in Gisda Cyf v Barratt [2010] IRLR 1073. In that case the Supreme Court held that, in the case of summary dismissal by letter, termination takes effect not when the dismissal letter is sent but when the employee actually reads it or has a reasonable opportunity to do so. The Appellant submitted that the same principle should apply by analogy and/or by virtue of public policy considerations.
Respondent’s submissions
In reply, the Respondent pointed to a line of cases stretching from Mensah v Royal College of Midwives [1994] EAT/124/94 (unreported) to Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24. These establish that a detriment is suffered for the purposes of anti-discrimination legislation when the detrimental act is done, not when the complainant has knowledge of it. It was submitted that whistle-blowing provisions have long been held to be a type of discrimination claim, and that the interpretation applying to discrimination law should therefore be followed.
Further, the Respondent pointed out that the wording of the statutory time limits imposed on protected disclosure detriment claims and discrimination claims mirror one another, and submitted that it must correct also to interpret them identically.
EAT Judgment
HHJ Peter Clark sided with the submissions of the Respondent, finding that time ran from the date the employer took the decision to reject the Claimant’s grievance. He accepted that the statutory provisions in question broadly mirror each other, and distinguished the case of Barrat as applying only to issues concerning the ‘effective date of termination’. Whilst he described the state of the current authorities as “less than satisfactory”, it was held that a clear principle was now emerging, and that the Respondent’s submissions must be right.
Kate Balmer appeared successfully for the Respondent in both the Employment Tribunal and Employment Appeal Tribunal hearings. To read the actual judgment, please click here.
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