Labour & European Law Review Weekly Issue 405 04 February 2015
Section 47B of the Employment Rights Act (ERA) states that workers can bring a tribunal claim if they are subjected to detrimental treatment by their employer as a result of making a protected disclosure. In McKinney v London Borough of Newham the Employment Appeal Tribunal (EAT) held that time for lodging the claim begins to run on the date that the detriment occurs, not when the employee becomes aware of it.
On 11 January 2011, Mr McKinney, who had worked in the Council’s finance department since July 1985, lodged a tribunal complaint of detrimental treatment short of dismissal because he had made protected disclosures (in other words, he had blown the whistle) under section 47B ERA. After his employment terminated in July 2012, he lodged a claim of constructive unfair dismissal.
The claims were combined at a case management discussion and then set down for a pre-hearing review in February 2013 to consider whether the whistleblowing claim was out of time and whether both claims should be struck out because they had no reasonable prospect of success.
The first issue for the tribunal to decide was whether Mr McKinney had lodged his whistleblowing claim within three months of the alleged detrimental treatment.
Mr McKinney argued that time began to run from the date of the Council’s rejection of his grievance in October 2010. If this was 8 October 2010 when the Council reached its decision, he was out of time; but if it was 14 October when Mr McKinney received the letter from the Council telling him of its decision, he was in time. The tribunal agreed with the Council that time began to run on 8 October.
The judge therefore struck out the whistle-blowing claim as being time-barred and the constructive unfair dismissal claim as having no reasonable prospect of success.
Mr McKinney argued that the EAT was bound by the Supreme Court decision in Gisda Cyf v Barratt (weekly LELR 198), which held that when a contract is terminated without notice, the effective date of termination is the date on which the employee becomes aware of their dismissal.
However, the Council argued that the EAT was bound by another line of authority which found that, in discrimination claims, a detriment is suffered on the date when the actual act is done, not when the complainant became aware of it.
Despite the “less than satisfactory” current state of the authorities, the EAT held that a clear thread of case law pointed towards “the counter-intuitive position” that time begins to run against a claimant relying on a detriment, both under the ERA and the Equality Act, irrespective of whether they realise there has been a detriment.
This was because claimants are entitled to know that they have been dismissed before the dismissal takes place, but can suffer a detriment without being aware of it. By way of analogy, the judge pointed out that time runs for bringing an appeal to the EAT from the date the tribunal judgment is sent to the parties, not when it is received by them. The whistleblowing complaint was therefore out of time.
It also upheld the tribunal judge’s decision to dismiss the constructive unfair dismissal claim, as there had “plainly” been an actual dismissal by virtue of the Council’s letter of 8 May 2012.
In a discrimination claim the tribunal has a discretion to extend time if it would be “just and equitable” to do so. In a detriment claim there is a more restrictive test of “reasonable practicability”. It is likely however that even the reasonable practicability test would have been satisfied if Mr McKinney had not in fact received the grievance outcome until after the tribunal deadline.