McKinney v Newham London Borough Council

For a detriment claim under section 48(3) of the Employment Rights Act 1996, time begins when the employer does the complained-of act or decides upon a deliberate omission. It does not generally await the claimant’s knowledge of the detriment. This approach is materially the same as that applicable to discrimination claims under section 123(1) of the Equality Act 2010.

The effective date of termination under section 97(1)(b) raises a different question, because dismissal must take effect when the employee knows, or has a reasonable opportunity to know, of it. A constructive dismissal claim may be struck out where the pleaded case cannot succeed and the claimant has persisted in pursuing that case despite clarification. A costs contribution may be upheld where the tribunal has exercised its wide discretion without material error.

The claimant brought two claims against his employer. The first alleged detrimental treatment for making protected disclosures. The second was presented as constructive unfair dismissal.

The Employment Tribunal held that the whistle-blowing claim was out of time, struck out the constructive dismissal claim as having no reasonable prospect of success, and ordered a costs contribution of £7,750. The claimant appealed on limitation, strike-out, and costs.

The central limitation issue was whether time began when the respondent decided to reject the claimant’s grievance, or when the claimant received the outcome letter. The appeal also concerned whether the pleaded constructive dismissal claim could properly be struck out and whether the costs order involved an error of principle.

1. Limitation. The appeal on limitation was dismissed. Section 48(3) of the Employment Rights Act 1996 focuses on the employer’s act or failure to act. The primary three-month period therefore begins when the relevant act occurs, or when a deliberate failure to act is decided upon. It does not generally begin only when the claimant learns of the detriment.
2. The limitation provisions for whistle-blowing detriment and discrimination are materially aligned. The line of authority comprising Mensah, Virdi, Garry and Flynn v Warrior Square supported that conclusion. Aniagwu was not followed. The concession recognised in Virdi and Havill—that an act may be completed only when communicated in some cases—did not alter the result.
3. The Supreme Court’s reasoning on the effective date of termination under section 97(1)(b) of the Employment Rights Act 1996 was distinguishable. A dismissal cannot ordinarily take effect before the employee knows, or has a reasonable opportunity to know, of it. A detriment may nevertheless be suffered without the employee’s knowledge.
4. Applying that construction, the relevant act was the respondent’s grievance decision on 8 October 2010. The complaint lodged on 11 January 2011 was out of time. The tribunal’s separate rejection of the reasonable-practicability argument was not challenged.
5. Constructive dismissal. The strike-out was upheld. If the pleaded issue had been the reason for an actual dismissal, factual questions might have made strike-out inappropriate. The claimant, however, had advanced a hopeless constructive dismissal case, and the tribunal was not required to recast it. There had been an actual dismissal by the respondent’s letter of 8 May 2012.
6. Costs. The costs order disclosed no material irregularity or error of approach. The tribunal had a wide discretion, was entitled to consider the claimant’s financial position, and could order a contribution below the amount claimed.

The appeal failed and was dismissed.

• Employment Tribunal: The whistle-blowing claim was struck out as out of time. The constructive unfair dismissal claim was struck out as having no reasonable prospect of success. A costs contribution of £7,750 was ordered.
• Employment Appeal Tribunal: The appeal against the limitation ruling, strike-out, and costs order was dismissed.