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Whistleblowing - time starts to run as soon as decision/act occurs, says EAT

Whistleblowing - time starts to run as soon as decision/act occurs, says EAT

Does time start to run (under s48(3)) when the employer makes a decision, or when the employee is told of it, in a whistleblowing claim (not dismissal)?

McKinney v London Borough of Newham (UKEAT/0501/13/LA) (EAT)

by Sally Cowen

Cloisters Chambers' barrister Declan O’Dempsey represented the Claimant in this appeal under the pro bono Employment Law Appeal Advice Scheme (ELAAS).

The EAT held that it was when the employer makes the decision.

C worked for R in the finance department. His first claim alleged detriment short of dismissal as a result of a protected disclosure. He also subsequently claimed constructive dismissal.

The issue of limitation was raised with regard to the whistleblowing claim. The Employment Judge struck it out for being out of time. The EAT had to consider when time started to run in a claim for detriment due to a protected disclosure. The different options were; a) when the R reached the decision to reject the C’s grievance on 8th October 2010, following a hearing on 6 October, or b)when the C learned of the decision on 14th October, on receipt of the letter. If it was a), then the claim was out of time, whereas if it was b) then it was in time.

The EAT had to decide between two different lines of authority. C argued in line with cases on the date on which termination takes effect where no notice is given, that the date is when the C receives the notice and therefore in this case it was the 14 October.

R argued in line with the authorities of when a detriment is suffered in discrimination claims, that time starts to run when the detrimental act is done, in which case time started to run in this case on the 8 October.

Section 48(3) ERA provides that where the complaint is one of detrimental treatment contrary to s.47B the 3 month time limit begins to run on “ the date of the act or failure to act to which the complaint relates”. This is similar to that in s123(1) Equality Act. However, there are other aspects which differentiate whistleblowing claims from discrimination claims. These include, the fact that there is no reversal of the burden of proof.

The EAT (HHJ Peter Clark )gave the following analysis:

  1. There is no material difference between the detrimental treatment provisions of the Employment Rights Act and the Equality Act, so far as limitation is concerned,
  2. Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303 did not take into account Mensah v Royal College of Midwives (EAT/124/94 unreported)(EAT), or British Airways Board v Clark and Havill [1982] IRLR 238 (EAT),
  3. In both Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 (Elias P) and also in Havill, it was noted that the act may not be done until it is communicated,
  4. In Flynn v Warrior Square Recoveries Ltd [2014] EWCA Civ 68 (4 February 2014) the CA upheld the EAT decision that time begins to run under s.48(3) ERA from the date of the employer’s act or failure to act, rather than from the date the detriment is first suffered,
  5. The concept of effective date of termination under s.97(1)(b) ERA is different from the detriment of s.48(3)ERA and s.123(1)EqA
  6. A clear line is emerging in the authorities that under both the ERA and the EqA time begins to run when the decision is made, whether or not the employee is aware of it.

In this case the EAT decided that time begins to run when the employer makes the decision, not when the employee becomes aware of it. Hence the EJ was right to conclude that time started to run on 8 October and hence the claim was made out of time.

The EAT also found that the appeal on the strike out of the constructive dismissal should fail, as there was an actual dismissal, it also allowed the award of R’s costs to remain.

Comment:

This EAT decision brings the tests for detriment and time limit in whistleblowing cases closer to those in discrimination cases, rather than the rest of the ERA claims.
it gives further emphasis to the idea that whistleblowing protection is a type of protection from discrimination.

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