St John Ambulance v Mulvie

For a complaint under section 47B of the Employment Rights Act 1996, the three-month period runs from the relevant detriment, or from the last act in a series of similar acts. The possibility of a series does not require a full evidential hearing where no detriment occurred within the three months before presentation of the complaint. A continuing failure to address grievances ends when the employer deliberately decides not to deal with them. A detriment caused by placing an advertisement is an act completed when the advertisement is placed; its continuing consequences do not extend time.

The claimant, an employee, presented a complaint under section 47B of the Employment Rights Act 1996 on 4 May 2010. The employment judge deferred determination of whether it was in time until the merits hearing, considering that evidence was needed to decide whether the alleged detriments formed a series of similar acts or failures. The employer appealed. The central issues were whether the January 2010 refusal to deal with the claimant’s grievances was a continuing failure or a completed deliberate failure to act, and whether any earlier detriments could extend time under section 48(3)(a).

1. The appeal was allowed and the employment judge’s ruling was set aside. The complaint was presented out of time under section 48(3), subject to the tribunal’s remaining power to consider an extension under section 48(3)(b).

2. The latest pleaded detriment was the refusal, communicated on 12 January 2010, to communicate directly with the claimant or engage the employer’s grievance and whistleblowing procedures. It was a deliberate failure to act within section 48(4)(b), and the failure was necessarily decided upon by 12 January 2010 because the refusal was then communicated.

3. Any earlier continuing failure to deal with the claimant’s grievances was brought to an end by that decision. Since the complaint was presented on 4 May 2010, the applicable deadline was 12 April 2010. The question whether earlier detriments formed part of a series of similar acts therefore did not arise, because there was no relevant detriment within the three-month period.

4. Even if the later advertisement constituted a detriment, the relevant act was placing it on the website. Its continued presence and consequences did not make the act continuing for limitation purposes. The tribunal still had to determine whether it was reasonably practicable to present the complaint by 12 April 2010 and, if not, whether an extension to 4 May 2010 was reasonable.

• Employment tribunal: Employment Judge Henderson deferred determination of whether the section 47B complaint was in time until the merits hearing.
• Employment Appeal Tribunal: The appeal was allowed, the ruling was set aside, and the complaint was recorded as presented out of time. The question of an extension remained for the employment tribunal.