The EAT has held that the limitation period for bringing a claim for detriment on the ground of making a protected disclosure runs from the date of the detrimental treatment rather than when the employee becomes aware of it.
McKinney v London Borough of Newham
Mr. McKinney brought a claim for a detriment on the ground of having made a protected disclosure after his employer rejected a grievance that he had raised. The grievance hearing was held on 6 October 2010 and the employer made the decision to reject the grievance on 8 October 2010. A letter setting out the grievance decision was sent to Mr. McKinney on the same day, which he received on 14 October 2010. He brought a whistleblowing claim on 11 January 2011. The claim was struck out by the Tribunal at a preliminary hearing as being out of time. Mr. McKinney appealed.
The EAT upheld the Tribunal's decision and rejected Mr. McKinney's appeal. Although the EAT felt that previous case law wasn't entirely consistent, it nonetheless found that a "clear thread" emerged from recent authorities:
- there were no substantive differences between the wording of the provision dealing with the limitation period for claims of detriment on account of whistleblowing in the Employment Rights Act 1996, (S 48(3) ERA), and the provision in the Equality Act 2010 dealing with the limitation period for discrimination claims, (S 123(1) EqA). It had already been established that in discrimination claims, time begins to run from the date on which an employer acts in a detrimental way, not from the date that the employee became aware of it;
- There may be circumstances where the detrimental treatment is not done until it is communicated to the employee but this was not the case here; and
- The concept of the effective date of termination ("EDT") for dismissal purposes, (which is linked to the date on which an employee became aware, or ought reasonably to have been aware, of his dismissal), does not apply to detriment claims. According to the EAT, a claimant is entitled to know that he has been dismissed before the dismissal takes effect, but he can suffer a detriment without that knowledge.
Therefore, and "without enthusiasm", the EAT held that the Tribunal had been correct to find that the limitation period for the whistleblowing claim began running on 8 October 2011 when the decision to reject the grievance was made, not the later date of 14 October when the employee received the letter, which meant that the claim was out of time on 11 January 2011.
The EAT's decision is helpful in clarifying that the limitation period for a claim of detriment on account of whistleblowing is analogous to the limitation period for a discrimination claim. Whilst the decision may seem harsh on Mr. McKinney, other claimants in his position may be able to persuade the Tribunal to extend time for submitting the claim on the basis that it wasn't "reasonably practicable" for the claim to be presented in time. This argument was not explored by the EAT in this case.