Croker v Surrey County Council

For a detriment complaint arising from a protected disclosure, time runs from the act or failure to act identified in the claim. A later description of the conduct, such as labelling disciplinary allegations as fraud, does not create a new cause of action where that description is not an essential part of the pleaded complaint. A failure to conclude disciplinary proceedings may be treated as decided when the employer ought reasonably to have acted, applying Employment Rights Act 1996, section 48(4). Whether that period has expired is ordinarily a question of fact. An extension based on reasonable practicability cannot generally be raised for the first time on appeal.

The appellant, a retained firefighter employed by Surrey County Council, complained that disciplinary proceedings relating to wage, overtime and travel claims had been initiated and maintained because he had made a protected disclosure concerning a personal injury claim.

The Employment Judge held that the complaint concerned a failure to act and that the employer could reasonably have been expected to act within three months of a July 2009 county court hearing. The claim, presented in November 2010, was therefore out of time. The appellant appealed, contending that time ran from an August 2010 letter referring to fraud, that the disciplinary process was continuing until then, and that it had not been reasonably practicable to present the claim earlier.

1. Appeal dismissed. The appeal disclosed no arguable point of law.
2. The claim, as pleaded in the ET1, concerned the initiation and continuation of disciplinary proceedings, together with the failure to finalise them. It was not a complaint about the later use of the word fraud. That nomenclature was not an essential feature of the claim, particularly because the appellant’s grievance had been commenced before the August 2010 letter.
3. There was no evidence that the employer took any action concerning the disciplinary proceedings between July 2009 and August 2010. The Employment Judge was therefore entitled to analyse the matter as a failure to act, rather than as a continuing act. The conclusion was not arguably erroneous in law.
4. Under section 48(3) of the Employment Rights Act 1996, the complaint had to be presented within three months of the relevant act or failure, subject to the statutory extension. Section 48(4) treats a deliberate failure to act as occurring when the decision was made, with the decision inferred from an inconsistent act or, absent such an act, expiry of the period in which the employer might reasonably have been expected to act.
5. The finding that the employer should have acted within three months of July 2009 was a finding of fact open to the Employment Judge. Even if May 2010 were treated as the relevant date, the November 2010 claim remained more than three months late. The reasonable-practicability argument had not been advanced before the Employment Tribunal and was raised too late before the Employment Appeal Tribunal.

1. Employment Appeal Tribunal: on 18 November 2011, sitting alone, dismissed the Rule 3(10) appeal and held that no arguable point of law arose.
2. Employment Tribunal: Employment Judge Zuke, on 2 February 2011, rejected the complaint as out of time.