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Whistleblowing…Be careful of time limits

This decision may seem a little harsh on employees, as their Employment Tribunal clock may start ‘ticking’ without them even knowing of this.

In McKinney v London Borough of Newham, the Employment Appeals Tribunal (“EAT”) had to determine whether a previous Employment Tribunal had been right to strike out a Whistleblowing claim on the basis that the 3 month time limit for bringing the claim, ran from the date of the employer’s decision to not uphold his grievance (the alleged detriment), as opposed to the date on which the employee learnt about the decision (which was later).

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In the case itself, the Claimant brought this Whistleblowing claim on 11 January 2011, following the rejection of his grievance. The grievance hearing had taken place on 6 October 2010 and the decision in respect of the grievance outcome was reached by the employer a few days later on 8 October 2010 when a grievance outcome letter was drafted. However, the Claimant did not learn about the decision until he received the outcome letter (dated 8 October 2010) on 14 October 2010.

The EAT considered when time limits ran, comparing the legislation on this point in respect of unfair dismissal and discrimination claims. As a reminder, for unfair dismissal claims, the effective date of termination (from which the 3 month time period starts running) is the date on which the employee learns of the dismissal. In discrimination cases, the ‘start date’ is when the employer commits (or fails to act) in respect of a discriminatory act.

The EAT concluded that there was no ‘material difference’ between a whistleblowing claim and discrimination claim and found that the 3 month time limit therefore runs from the date when the employer subjects the employee to a detriment (whether by act or omission) because of his/her protected disclosure. Consequently in whistleblowing cases, time limits do not start to run from the later date when the employee learns of such detriment. For Mr McKinney, it meant that the time limit ran from 8 October 2010, and that by submitting his claim on 11 January 2011, his claim was out of time by a few days.

This decision may seem a little harsh on employees, as their Employment Tribunal clock may start ‘ticking’ without them even knowing of this. For the very same reason, recruitment agents acting on behalf of employers are likely to welcome the decision as it may, as seen in this case, enable them to make a strike out application in circumstances where the Claimant brings a claim around 3 months after learning of the detriment and, for this purpose, a prudent recruitment agent acting on behalf of an employer should check when decisions were made even if they were not immediately communicated to the employee (for example).

What the judgment fails to address is why it was not possible to extend the Claimant’s 3 month time limit for bringing the claim, on the basis that it was not ‘reasonably practicable’ for him to do so within the initial 3 month period. This is the test under which a Tribunal may, in an unfair dismissal claim, extend time limits and is a fairly tough test to meet. It equally applies to whistleblowing cases which, despite the analogies drawn to discrimination cases in the McKinney case, has the same test.

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