Staff who raise concerns about their workplace are legally protected from detrimental treatment - as long as they claim in time. But when does the detrimental act begin?
by Tim Woodward
26 November 2009
A recent decision of the Employment Appeal Tribunal (EAT) has looked at the time limits for bringing a claim for detrimental treatment under whistleblowing legislation in the Employment Rights Act (ERA) 1996. A key issue is when the time limit for bringing a claim begins, if the detriment suffered occurs some time after the protected disclosure is made.
The ERA protects workers who 'blow the whistle' on their employers. Employees cannot be subjected to a detriment by:
any act, or any deliberate failure to act done on the ground that the worker has made a protected disclosure.
A 'protected disclosure' is a 'whistleblow' that qualifies for the legal 'shield'. If a worker believes that he or she has been subjected to such a detriment, they have three months to lodge a claim at the Employment Tribunal (ET).
The legislation says that the time to bring a claim runs from the date "of the act or failure to act to which the complaint relates, or, where that act or failure is part of a series of similar acts or failures, the last of them".
In Unilever UK Plc v Hickinson and Sodexo Ltd, Mr Hickinson was employed by Sodexo to provide security at Unilever's site. He had originally been employed by Unilever from 1992, but his employment transferred to Sodexo a few years later.
On 4 July 2008 Mr Hickinson told Unilever that he had been making covert recordings of some workers at the Unilever site. On the same day Unilever sent an email to Sodexo requiring that Mr Hickinson be removed from the site. This was to have immediate effect.
Over the following few weeks, Sodexo considered placing him at another site but this did not work out. On 2 August 2008 Mr Hickinson was dismissed.
He appealed against the dismissal on 29 September 2008 and brought ET proceedings on 6 October 2008.
Mr Hickinson argued that he was a worker engaged by Unilever and that he had been subjected to a detriment by the firm. This is relevant because workers as well as employees are given protection under the whistleblowing law in relation to detrimental treatment. He further argued that the claim was in time because there had been a continuing act or series of acts which culminated in his dismissal on 2 August.
In its defence Unilever argued that the claim had been presented out of time because the detrimental act (ie, his removal from the site) occurred on 4 July 2008, more than three months before he submitted his claim.
At a Pre Hearing Review held to determine, among other things, if the claim was in time, the ET had found that Mr Hickinson had brought his claim in time as, while there was no continuing act, it was necessary to "take the act and its consequences as a whole" into consideration when determining when the time limit began.
This decision was overturned on appeal to the EAT, wich found that, as the ET had made a finding that there was no continuing act, the claim could not have been brought in time.
The EAT agreed that the detriment complained of was inflicted on 4 July, when Unilever emailed Sodexo requiring that Mr Hickinson was removed from site. Mr Hickinson's subsequent dismissal by Sodexo did not form part of the detrimental act. Dismissal would form the basis of a different type of claim under the whistleblowing framework - and one that could not be pursued by anyone other than an employee.
Heart of the matter
The EAT went on to consider whether there was a continuing act of detriment after 4 July. The EAT noted that once the ET had come to the conclusion that there was no continuing detriment, it should not have taken into account the consequences of the one detrimental act that had occurred. The claim was dismissed.
This case reaffirms the importance of identifying the detrimental treatment at the heart of the case and not being distracted by the date of dismissal.
The dismissal is not relevant to a claim like this one where treating someone badly is the cause. The time limit for bringing the claim runs from the date of the act, or failure to act (or the last in the series of acts). A continuing act is very different from lumping together the consequence of an act and the act together as the act of detriment.
Tim Woodward is a partner at Bevan Brittan LLP
The Employment Rights Act 1996 shields 'whistleblowing' staff against detriment treatment from employers
Workers as well as staff are covered
If detrimental treatment follows such a protected disclosure employees are given three months to lodge a claim with the Employment Tribunal
The time limit for a claim must run from the date of the act, or failure to act (or the last in a series of acts)
Detrimental treatment is more relevant than date of dismissal in cases when poor treatment of the employee is the cause of the claim