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Whistleblowing detriments must be both proven and in time

VWV

In the case of Royal Mail Group Ltd -v- Jhuti, the Employment Appeal Tribunal (EAT) considered whether in whistleblowing claims it was necessary for a claimant to prove... ...at least one detriment that fell within the three month time limit for bringing a claim in order to be successful in a claim based on a series of alleged acts, some of which were older than three months.

The Law The ERA protects whistleblowers from suffering detriments because of 'protected disclosures' they have made.

A 'protected disclosure' is a disclosure of information which a worker reasonably believes is in the public interest and tends to show that some malpractice is, or is likely to, take place.

If a worker is subjected to a detriment on the grounds that they have made a protected disclosure they will have three months following the act complained of to bring a claim.

Where the worker is subjected to a series of similar acts, the claim must be brought within three months of the last act in the series.

The Facts Ms Jhuti was employed with the Royal Mail. During her probationary period she reported concerns to her line manager in relation to incentives that were being offered to customers.

These were protected disclosures. Ms Jhuti claimed that her line manager put considerable pressure on her to withdraw these allegations and threatened to terminate her employment.

In subsequent months Ms Jhuti's line manager was critical of her performance, set her unreasonable performance objectives and made two settlement proposals to her under which her employment would terminate.

These were detriments. In March 2014 Ms Jhuti raised a formal grievance in relation to her treatment.

In July 2014 she was dismissed and in March 2015, with both her grievance and appeal against her dismissal outstanding, she brought a claim in the Employment Tribunal for, amongst other things, whistleblowing detriment.

The detriments she relied upon were those mentioned above together with the failure to investigate her grievance and provide her with a grievance outcome.

In August 2015 Royal Mail rejected Ms Jhuti's grievance and her dismissal appeal.

The Employment Tribunal upheld Ms Jhuti's whistleblowing claim in respect of the performance targets and settlement offers.

The Tribunal rejected her complaints in respect of the grievance as, by the time the Tribunal heard the claim in November 2015, her grievance had been investigated and an outcome communicated.

Ms Jhuti's successful detriments were all out of time however the Tribunal held that her unsuccessful grievance complaints were part of a series of similar acts including the earlier successful detriments.

Her grievance complaints were in time and therefore all of the acts in the series were in time. Royal Mail appealed on the basis that Ms Jhuti's grievance complaint had been rejected and should not therefore be considered as an 'act' capable of being part of a series for the purposes of calculating whether she was in time.

Ms Jhuti also cross appealed claiming that the Employment Tribunal had interpreted her grievance complaint too narrowly and that it should have taken into account whether the grievance investigation was inadequate and whether a timely outcome had been provided.

Decision The EAT allowed the appeal and held that there must be at least one proven act that amounts to a whistleblowing detriment that occurs within a claimant's three month time limit.

As the grievance complaint was not proven Ms Jhuti could not rely on it and her claims were therefore out of time. The cross appeal was, however, also allowed.

The case has therefore been remitted to the Employment Tribunal to determine whether the failure to adequately investigate Ms Jhuti's grievance and provide her with a timely outcome were done on the ground of her protected disclosures.

If not, then this part of Ms Jhuti's claim will be unsuccessful and her successful detriments will remain out of time. Otherwise, the Employment Tribunal will need to determine whether the grievance complaints form part of a series of acts including the performance targets and settlement offers in which case all of the acts in that series will be in time.

Best Practice

This decision provides a helpful reminder to employers of the need to handle grievances promptly and comprehensively, even where deep rooted disputes exist with an employee and litigation is contemplated or brought.

Employers will need to consider and follow their own grievance procedures and ensure they comply with the ACAS Code of Practice on Disciplinary and Grievances Procedures.

Although this case is unusual and fact specific, the delay in properly dealing with the grievance has increased the employer's vulnerability to being held liable for older and otherwise out of time issues.

For more information please contact Kathy Halliday in our Employment law team on 0121 227 3711.