The EAT has recently clarified in McKinney v London Borough of Newham that where an employer takes a detrimental decision against an employee, allegedly on the ground that the employee has done a protected act under the Employment Rights Act 1996, the time limit for making a claim starts running on the date of the decision, not on the date that the employee learns of it.
K was employed in the Council’s finance department until July 2012. While still employed, he sought to bring a claim of detrimental treatment on the ground that he had made a protected disclosure (a ‘whistleblowing’ claim). He presented the claim on 11 January 2011. The detrimental treatment on which he sought to rely was the Council’s decision to reject a grievance he had raised. The Council took this decision on 8 October 2010 and informed K by letter, which he read on 14 October. At a pre-hearing review, an employment judge considered that the claim was out of time, since the three-month limit began running on 8 October 2010. The judge accordingly struck out the claim. K appealed to the EAT.
At a preliminary hearing, His Honour Judge Peter Clark took the initial view that the employment judge was arguably wrong following the Supreme Court’s decision in Gisda Cyf v Barratt. The Court there decided that when an employee is summarily dismissed by letter, the effective date of termination for the purpose of an unfair dismissal claim is the date the employee actually reads the letter or has had a reasonable opportunity of doing so. However, after considering a range of authorities on the time limit for detriment suffered in relation to the anti-discrimination legislation, HHJ Peter Clark concluded that the position is different for the purpose of detriment claims. He considered that there is no material difference between the detriment provisions of the ERA and the Equality Act 2010 so far as limitation is concerned. He identified a ‘counter-intuitive’ position emerging from the case law to the effect that time begins to run against a detriment claimant under both the ERA and the EqA whether or not the claimant is aware that a detriment has been suffered. The employment judge was therefore right to treat time as running from the date of the Council’s decision and to find that K’s complaint was brought out of time.