Making time
The Employment Appeal Tribunal has recently ruled in a case involving a local authority that the time limit for s49 protected disclosure claims runs from the act, not its consequences. John Crosfill looks at the judgment.
In Vivian v Bournemouth BC UKEAT/0254/10/JOJ, V was an administrator working for the local authority B. She fell out with her line managers. In February 2008 she went on sick leave, as it turns out, never to return.
After an unsuccessful attempt to mediate the dispute on 2 June 2008 V sent B a grievance in which she complained about the way her managers treated her. B commissioned an investigation of V’s complaint which concluded that there was insufficient evidence of any bullying. V appealed that decision and to a degree that appeal succeeded as a review was undertaken of the original investigation. That review concluded that the original investigation was impartial and fair.
It was by then November 2008 and B took steps under its Bullying and Harassment Policy to reintegrate V into the workplace. It appears to have been common ground that V could no longer work with her line managers. B informed her that she would be placed in the redeployment pool but if no alternative role was found in four weeks she could be dismissed.
V protested and brought further grievances complaining about the manner in which her earlier complaints had been investigated, the shortness of the redeployment period and that her requests for an extension of sick pay had been refused.
Those grievances were not upheld and V was dismissed when no alternative role was found for her. V brought proceedings in the employment tribunal in which she claimed that:
- her letter of 2 June was a protected disclosure;
- B's handling of her complaint amounted to unlawful detriment; and
- her dismissal was unfair by reason of s103A of the ERA 1996 (i.e. that her protected disclosure was the reason for her dismissal).
Whilst the employment tribunal accepted (generously one might think) that the letter of 2 June 2008 was a protected disclosure they dismissed all of her claims. In particular deciding that:
(a) the unlawful detriment claim was out of time; and
(b) the reason for the dismissal was not the making of the protected disclosure.
V appealed.
Held
- That the time limit for bringing a “detriment” claim by reason of a protected disclosure runs not from the time that the detriment was suffered but from the time that the “act” that led to the detriment took place.
- That an “act” is on the grounds that an employee has made a protected disclosure if either it is done by reason of the disclosure OR the act was inherently for such a reason – on the facts nobody was motivated by V‟s protected disclosure nor was being placed in the redeployment pool an inherent result of bringing the complaints
- That the question of whether an “act” led to a “detriment” was a question of causation.
- That there was no error of law in the ET‟s conclusions: (a) that the dismissal was not by reason of the protected disclosure and (b) that the reason for the dismissal was “some other substantial reason” namely the irretrievable breakdown in relations and was fair.
Comment
It seems that this is another protected disclosure case that received a cold reception. The competing arguments in this case mirror the difference in limitation periods for contract and tort. The former running from breach and the latter from damage.
This is a point that advisors will wish to keep under review. It is worth noting the suggestion that if there is a long gap between the “act” and the “detriment” then it might be possible for a claimant to avail themselves of the “not reasonably practicable” extension of time as no claim can be brought until the detriment has been suffered.
John Crosfill is a barrister at Field Court Chambers.
