Mrs D Thomas v The Governing Body of Aldingbourne Primary School and 2 others — 2023

At the preliminary hearing on 24 October 2023, the tribunal considered whether the claimant's public interest disclosure detriment claims against the first and second respondents were out of time. It held that the Education (Modification of Enactments Relating to Employment) (England) Order 2003 did not apply to these whistleblowing claims under s47B ERA 1996, because they did not fall within the Schedule to the Order. The tribunal therefore proceeded on the basis that West Sussex County Council was the claimant's employer throughout, and that any decisions taken by the first respondent were by delegation or agency.

On limitation, the tribunal noted that the claim form was presented on 6 January 2023 and that the early conciliation certificates were dated in November and December 2022. It accepted the respondent's case that, on the claimant's own chronology, the last act specifically alleged against R1 and/or R2 was 7 April 2022, so the claims were out of time on their face. The claimant argued that delay was explained by the ongoing internal grievance process and her belief that she should wait for the grievance appeal before starting tribunal proceedings.

Applying the reasonable practicability test, including the authorities it cited on that issue, the tribunal rejected the claimant's case that it was not reasonably practicable to present the claim in time. It found that she had access to union advice throughout, that there was no allegation she had been misled about tribunal time limits or told she had to await the internal appeal, and that earlier enquiry would have shown that a tribunal claim did not need to wait for the grievance outcome. The claims against R1 and R2 were therefore dismissed as presented out of time. The tribunal said this did not prevent the claimant pursuing the underlying claims against R3, and any time-point issues as against R3 were reserved to the final hearing.