The Respondent contended that in circumstances where the last proven detrimental act occurred no later than 30 March 2014, and there were no further proven acts in the period thereafter, to 20 October 2014 (the latest date an act could have taken place for the claim to be in time), the detriment claims were out of time even by reference to a continuing act or a series of similar acts, and the ET erred in reaching the contrary view. They contended that s.48(3) ERA is concerned only with proven acts and not those acts that have been dismissed as unfounded on the facts or not done on grounds of a protected disclosure. Once an act is proved, that act can work to enlarge time for proven acts that arise outside the ordinary three month time limit if the complainant is able to establish that the act is part of a series of similar acts. However none of these provisions contemplates that non acts (in the sense of acts that have been dismissed by the Tribunal as not being whistleblowing acts that produce a detriment) can somehow be treated as proven acts so as to assist the Claimant with a time argument.

The EAT allowed the appeal. At least the last of the acts or failures to act in the series must be both in time and proven to be actionable if it is to be capable of enlarging time under s.48(3)(a) ERA. Acts relied on but on which a claimant does not succeed, whether because the facts are not made out or the ground for the treatment is not a protected disclosure, cannot be relevant for these purposes.