Posted by Gemma Ospedale, Partner
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Time limit for detriment claim is different to dismissal
In McKinney v London Borough of Newham, the EAT has clarified the date on which time starts to run for bringing a claim for detrimental treatment. This is different to the date on which the time starts to run for a claim for unfair dismissal.
Whilst still employed, the Claimant sought to bring a claim for detrimental treatment on the ground of having made a protected disclosure. The claim was presented on the 11th January 2011. The treatment on which he sought to rely was the council’s decision to reject a grievance he had raised. The decision to reject the grievance was taken on the 8th October 2010 and the Claimant was informed by letter which he read on the 14th October. The Claimant therefore presumed that the time within which he had to bring his claim started running from the 14th October, not the 8th October. An Employment Judge at a pre-hearing review considered that the claim was out of time because the time limit started to run on 8th October and so the claim was struck out.
On appeal to the EAT, the judge initially considered that the Employment Judge was arguably wrong following the Supreme Court’s decision in Gisda Cyf v Barratt. This was the case which determined that, where an employee is summarily dismissed by letter, the effective date of termination is the date on which the employee reads the letter or has a reasonable opportunity of doing so, not the date of the letter. However the range of authorities regarding the time limit for bringing a claim for a detriment in relation to discrimination or whistle blowing legislation caused the judge to conclude that the position is different regarding time limits for detriment claims. He concluded that there was no major different between the detriment provisions of the ERA and the Equality Act as far as limitation was concerned; but the case law threw up a counter-intuitive position to the effect that time begins to run for a detriment claim under both sets of legislation whether or not the Claimant is aware that a detriment has been suffered. Therefore he concluded that the Employment Judge was right to treat the time as running from the date on which the decision was made and that the Claimant’s claim was brought out of time.
On the face of it this does seem quite a harsh decision and it remains to be seen whether the Claimant will take this any further.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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