Royal Mail Group Ltd v Jhuti

For limitation purposes under section 48(3)(a) of the Employment Rights Act 1996, the last act or failure relied on in a series of similar whistleblowing detriments must both be in time and be proved actionable. An allegation which fails on the facts, or because it was not done on the ground of protected disclosure, cannot extend time for earlier acts.

A continuing detriment is not a continuing act. Continuing consequences of earlier treatment do not affect the statutory time limit.

An agreed list of issues will ordinarily define the case. A tribunal must nevertheless construe it fairly and may expand it, without enlarging the pleaded claim, where evidence and submissions make that necessary to determine the case justly.

The Claimant alleged whistleblowing detriments after reporting suspected irregularities concerning incentive arrangements. The Employment Tribunal upheld several detriment complaints arising no later than 30 March 2014. It rejected a grievance complaint framed as a failure to investigate and provide an outcome, although it found that the investigation had been inadequate and delayed.

The Respondent appealed the Tribunal’s finding that all detriment claims formed a timely series. The Claimant cross-appealed the narrow treatment of the grievance issue. Following an earlier appeal concerning automatic unfair dismissal and a subsequent Court of Appeal decision, those two grounds returned to the Employment Appeal Tribunal.

The central questions were whether an unproven grievance detriment could extend time for earlier claims, and whether the Tribunal had wrongly treated the agreed issue as exhaustive and literal.

1. Appeal and cross-appeal allowed. The limitation finding could not stand. A complaint under section 48(1A) of the Employment Rights Act 1996 requires proof of a contravention of section 47B. Accordingly, the acts or failures to which section 48(3)(a) refers must be actionable acts or failures.

2. Where a claimant relies on a series of similar acts, at least the last act or failure must have occurred within the primary period and have been proved actionable. It is unnecessary for every alleged act in the series to succeed. However, an allegation which is not proved, or which was not done on the prohibited ground, cannot be the in-time act that enlarges time for earlier complaints.

3. The Employment Tribunal erred in treating a continuing detriment as a continuing act. The established acts ended no later than 30 March 2014. Their continuing consequences for the Claimant could not create a connection with the later grievance allegation, which had not been proved actionable.

4. The Tribunal also adopted an unduly narrow construction of the agreed grievance issue. An agreed list of issues ordinarily confines the matters for decision, but it cannot be applied slavishly where that would prevent determination of the pleaded case on the evidence properly admitted. The pleaded complaint, the evidence and the parties’ submissions encompassed inadequate investigation, delay and the quality of the eventual outcome. Considering those matters would not enlarge the claim beyond the pleadings.

5. The grievance-related detriment issue was remitted to the same Employment Tribunal. It must decide whether the inadequate investigation and delay were on the ground of protected disclosures; if so, whether there was a series under section 48(3)(a); and, if not, whether time should be extended under section 48(3)(b).

• Court of Appeal: Reversed an earlier Employment Appeal Tribunal decision on the automatic-unfair-dismissal issue. It left the two grounds resolved in this judgment outstanding for determination by the Employment Appeal Tribunal.

• Employment Appeal Tribunal: In this judgment, [2018] UKEAT 0020_16_1903, allowed both the Respondent’s appeal on limitation and the Claimant’s cross-appeal on the grievance issue, and remitted the outstanding questions.

• Employment Tribunal: On 12 November 2015, upheld several protected-disclosure detriment complaints, treated them as a timely series, and rejected the grievance complaint on the agreed wording of the issue.