Nkechi Leeks v Royal Marsden NHS Foundation Trust

Where a whistleblowing recruitment complaint is brought under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018, the tribunal must identify the applicable category in regulation 5(3) before deciding when time begins to run. It is an error simply to adopt the date used for a related discrimination claim without that analysis.

In deciding whether it is just and equitable to extend time, a tribunal need not find exceptional circumstances. It may, however, consider the claimant’s knowledge, promptness in seeking advice or pursuing the claim, and the apparent strength of the claim. An appellate court will not interfere where those matters were permissibly weighed and the discretion remained unconstrained by an erroneous exceptional-circumstances test.

The claimant applied for catering-assistant roles with the respondent NHS Trust. She alleged that, after being offered a part-time role and attending a taster session, the Trust failed to provide a start date. She brought claims for religious and disability discrimination and for whistleblowing detriment under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018.

The London (South) Employment Tribunal held that all claims were out of time. It treated time as beginning at the end of July 2020 and declined a just and equitable extension. The claimant appealed, contending that the tribunal had not analysed regulation 5 of the 2018 Regulations and had wrongly exercised its discretion on extension of time.

1. Appeal allowed in part. The Employment Judge erred in law on the whistleblowing claim by failing to determine which provision in regulation 5(3) of the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018 governed the complaint.

2. The pleaded detriment was the failure to provide a start date after the asserted offer and taster session. On that characterisation, it was arguable that regulation 5(3)(b)(ii), concerning a deliberate omission to offer employment, did not apply. It was also arguable that regulation 5(3)(a), concerning a communicated decision not to employ, or regulation 5(3)(d), concerning withdrawal of an offer, applied instead. Those alternatives could produce a different time-limit outcome. The issue of when, if at all, time began to run on that claim was remitted to the Employment Tribunal.

3. The extension-of-time appeal was dismissed. Although the Employment Judge’s reference to extension as an exception rather than the rule, with reference to Robertson v Bexley Community Centre [2003] IRLR 434, was potentially unhappy shorthand, the reasons showed that she did not require exceptional circumstances or otherwise constrain the statutory discretion.

4. The Employment Judge was entitled to take account of the claimant’s state of mind after September 2020, including the lack of prompt action and advice. Her reference to the Keeble factor did not mean that the claimant had to possess positive knowledge of a claim. The Judge also permissibly took account of the claims’ apparent weakness and the absence of prejudice from the delay. The discretionary decision was within the proper bounds of the tribunal’s judgment.

5. The respondent’s cross-appeal was dismissed. The respondent remained free to seek strike-out if the remitted proceedings continued.

• Employment Appeal Tribunal: Allowed the appeal concerning the regulation 5 time-limit analysis and remitted that issue. Dismissed the challenge to the refusal of a just and equitable extension.
• Employment Tribunal, London (South): Following a hearing on 16 November 2022, dismissed the Equality Act and whistleblowing claims as out of time.