Oxfordshire County Council v Meade

For acts to constitute a continuing act for limitation purposes, each incident relied on must be unlawful. A tribunal errs if it treats lawful incidents as part of a continuing series merely because they follow earlier unlawful detriments.

Where the tribunal permissibly finds that later treatment resulted from a failure to agree arrangements for a return to work, rather than from a protected disclosure or protected act, those later matters fail for want of causation. Earlier claims are time-barred where no basis exists for extending time under the relevant reasonable-practicability or just-and-equitable provisions.

The claimant, a Social Inclusion Officer, brought claims for whistleblowing detriment under section 47B of the Employment Rights Act 1996 and victimisation under section 27 of the Equality Act 2010. Her claims followed grievances concerning recruitment and alleged workplace treatment, and a prolonged absence while arrangements for her return to work and mediation were pursued.

The Employment Tribunal upheld some pre-September 2012 allegations. It held that later allegations formed part of a continuing series, although it found that from September 2012 no detriment was caused by the protected disclosure or protected act. The employer appealed on limitation and causation. The claimant cross-appealed, principally contending that the finding on causation after September 2012 was perverse.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal erred in holding that events after September 2012 formed part of a continuing act. It was common ground that incidents relied upon as a continuing act had to be unlawful. The Tribunal had found that no unlawful detriment attributable to the protected disclosure or protected act occurred after September 2012.

2. The Tribunal was entitled to find that the later matters arose from the parties’ failure to reach agreement about the claimant’s return to work, rather than from the protected disclosure or protected act. The claimant’s perversity challenge therefore failed. The post-September allegations failed on causation, and it was unnecessary to decide whether January grievances were protected disclosures or whether certain alleged detriments had been addressed separately.

3. There was no need to remit the question of an extension of time. The Tribunal had found no evidence that it had not been reasonably practicable to present the earlier whistleblowing allegation in time. That conclusion necessarily applied to the incidents ending in September 2012. It had also declined to extend time for victimisation because the claimant had had legal advice for many months; the claimant had instructed solicitors by September 2012.

4. The claims were accordingly dismissed on limitation grounds. It was unnecessary to determine the employer’s remaining causation challenge concerning findings adverse to it for the period before the end of September 2012.

• Employment Appeal Tribunal: allowed the employer’s appeal and dismissed the claimant’s cross-appeal; the claims were dismissed as time-barred.
• Employment Tribunal: following a full hearing from 28 April to 1 May 2014, upheld the claims in part. It treated allegations after September 2012 as part of a continuing series notwithstanding its finding that they were not caused by the protected disclosure or protected act.