Act fast

Tait v Redcar and Cleveland Borough Council

The law says that when an act is done over a period of time, the relevant date for limitation purposes is the last date of that period. In Tait v Redcar and Cleveland Borough Council, the Employment Appeal Tribunal (EAT) said that a disciplinary suspension can be considered an “act” extending over a period of time.

Basic facts

Mr Tait (a traffic warden manager) told his line manager, Mr Winstanley, in November 2004 that he had received an anonymous allegation from a member of the public that Mr Winstanley’s boss, Derek Gittens, was corruptly cancelling penalty notices.

The following month Mr Tait was suspended by Mr Gittens, following a complaint by a traffic warden about him. A very long-winded disciplinary process then ensued which uncovered widespread dissatisfaction among the wardens about Mr Tait. On 16 September 2005 the council suggested that he resign and sign a compromise agreement.

At this point, the matter came to the attention of the chief executive, Mr Moore, who ordered an inquiry at the end of September. As a result, the disciplinary action was halted although Mr Tait remained suspended. On 30 January 2006 he returned to work on a self-contained project under a new line manager, Mr Flynn, but soon went off sick.

Towards the end of April 2006 Mr Tait lodged a tribunal claim stating that the council’s refusal to allow him to return to his old job constituted dismissal. He said this was unfair both under the “ordinary” provisions of unfair dismissal law as well as the whistleblowing provisions in the Employment Rights Act (ERA) 1996.

He also claimed he had been subject to a number of detriments (or disadvantages) short of dismissal including his suspension; the proposed compromise agreement; the suggestion that he should resign; the attempt to segregate him from his colleagues; and his exclusion from Christmas parties.

Relevant law

Section 47B(1) of the ERA states that employees have a right "not to be subjected to any detriment by any act, or any failure to act, by his employer done on the ground that [he] had made a protected disclosure". Section 48(4) (a) provides that "where an act extends over a period, the 'date of the act' means the last day of that period".

However, the law also states that the act complained of (or the last in a series of acts) must be "done" within six months prior to the presentation of the claim. This time limit represents the usual three month time limit set down under the Act, plus a three month extension allowed by the dispute resolution regulations when a grievance has been properly lodged.

Tribunal decision

The tribunal said that Mr Tait had to show that the detriments on which he wanted to rely had all occurred within the six months before his tribunal application on 27 April 2006. That meant that anything that happened before 28 October 2005 would be out of time.

Although the tribunal agreed that his suspension and the allegations made against him were acts of victimisation motivated by his whistleblowing, the tribunal said that “it could not link the pleaded acts of victimisation after Mr. Moore's intervention [in September] with those that proceeded it and our conclusion therefore that any detriment short of dismissal on the grounds of protected disclosure is out of time”.

Mr Tait appealed, arguing that as his suspension lasted until 9 November 2005, the date of the last act fell after 28 October.

EAT decision

The EAT agreed that a disciplinary suspension could constitute "an act extending over a period". It reasoned that “although there is no doubt an initial "act" of suspension, the state of affairs thereafter in which the employee remains suspended pending the outcome of the disciplinary proceedings can quite naturally be described not simply as a consequence of that act but as a continuation of it.”

However, this did not help Mr Tait. The EAT decided that as Mr Moore’s letter of 21 October made clear that all disciplinary proceedings were to come to an end, his suspension finished when Mr Tait received the letter. Although that date was not clear, the EAT said that it was prior to 28 October.