The EAT has recently confirmed that time limits for bringing discrimination claims for detrimental treatment run from the date on which the decision to make the detriment was taken as opposed to when the employee learns of it.
The case therefore means that employees have a lot less time than they might have thought to bring claims for discrimination, and they may not know when that time begins, as they will usually not be privy to the decision making process.
In this case, (McKinny v. London Borough of Newham) the employee was employed in the Council’s finance department. He tried to bring a whistleblowing claim against them. In order to do so, he had to establish that he had suffered a ‘detriment’. The detriment he relied on was the Council’s decision to reject a grievance he had raised. The decision to make the rejection was made on 8 October 2010, and the employee was informed by letter, which he read on October 14.
Because the employee brought his claim more than 3 months after 8 October 2010, he was out of time and not allowed to continue with his claim. This was the case even though he could not possibly have been aware when the Council took its decision.
The Court, further, went on to find that the same would apply to the Equality Act 2010 i.e. to discrimination claims (this was a whistle blowing claim bought under the Employment Rights Act 1996).
It is now imperative that, where there is a single detrimental act – either whistleblowing or discrimination – employees ‘get on’ and bring their claims as soon as possible, even though they think they are well within time. This is because any decision making may have happened some considerable time before the detrimental act the employee became aware of.
Likewise, employers who wish to capitalise on this decision may wish to ensure that their decision making process is minuted, and dated, and that as much time as possible elapses between the decision and any detrimental acts.
However, where employers seek to manipulate the situation, and, indeed, in other cases such as this one, we would expect Tribunals to be keen to exercise their discretion to extend time in favour of the employee, particularly when they could not possibly have known when the decision against them was made.