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Detriment claim runs from the date of the employer’s decision

15th December, 2014

Detriment claim runs from the date of the employer’s actual decision, not when employee finds out of it

The Employment Appeal Tribunal (EAT) has clarified in the case of McKinney v London Borough of Newham that where an employer makes a decision that is allegedly to the detriment of the employee on the grounds that they have made a “protected disclosure” (section 47B(1), ERA 1996), the three month time limit for bringing a claim runs from the date of the actual decision and not from when the employee learnt of it.

The Claimant brought his case to the Employment Tribunal (ET) on 11 January 2011 in respect of a decision that he felt amounted to detrimental treatment which was made on 8 October 2010 (the Claimant had learnt of the Employer’s decision on 14 October 2010). His claim was struck out by the ET for being out of time.

The Claimant appealed to the EAT who upheld the ET’s decision to not allow the claim on the basis that it is out of time. The EAT analysed a range of authorities and concluded that there is no material difference between the detriment provisions of the Employment Rights Act 1996 and Equality Act 2010 and confirming that time begins to run from when the employer made the decision, not when the employee became aware of it. The EAT confirmed that the time to bring a claim runs from the date of the employer’s decision, in this case on 8 October, and therefore the claim made was out of time.

Whilst this decision will be welcomed by employers, it is essential that employers seek to prevent whistleblowing claims arising from detrimental treatment by implementing a comprehensive Whistleblowing Policy and seeking professional legal advice prior to making any decision that may be determined to be detrimental treatment on the grounds that the employee has made a protected disclosure.

For further information and advice on whistleblowing, please contact Helen Watson on 01244 405565 or send an email to [email protected].

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