Warrior Square Recoveries Ltd v Flynn

For a protected-disclosure detriment claim, the limitation period runs from the employer’s causative act or deliberate failure to act, not from the continuing effects of the alleged detriment. Under Employment Rights Act 1996 section 48(3), a tribunal must identify that act or failure and its date. It must not consider a late claim unless the worker shows that earlier presentation was not reasonably practicable.

Annual leave accrued during sickness absence may carry forward automatically. A worker need not give notice during the relevant leave year in order to preserve that entitlement.

The employer appealed two rulings made by an Employment Judge at a pre-hearing review. The worker alleged detriment for making a protected disclosure in 2005. He had remained absent through sickness, resigned in May 2010, and presented his claim in September 2010.

The Employment Judge held that the alleged detriment might be continuing and therefore in time. She also declined to strike out a contractual holiday-pay claim. The central issues were whether the protected-disclosure complaint was time-barred and whether the holiday-pay claim should have been struck out.

1. Appeal allowed in part. The appeal against the protected-disclosure ruling was allowed. The complaint was struck out as out of time. The appeal against the refusal to strike out the holiday-pay claim was dismissed.

2. Section 47B of the Employment Rights Act 1996 distinguishes the employer’s act, or deliberate failure to act, from the detriment consequential upon it. Under section 48(3), time runs from the causative act or failure. A detriment may persist, but its continuing effects do not extend the limitation period.

3. The Employment Judge erred by failing to identify the alleged causative act or failure and by treating a continuing detriment as sufficient to make the claim timely. On the pleaded and identified facts, any relevant act or deliberate failure had occurred by 18 March 2010 at the latest. The September claim was therefore outside the three-month period.

4. No evidential material or submission established that it had not been reasonably practicable to present the complaint earlier. The statutory exception in section 48(3)(b) could not therefore be invoked. There was no issue requiring remission, and the EAT substituted a decision striking out that complaint.

5. The EAT noted that a detriment must be treatment which a reasonable worker would or might regard as detrimental. The Employment Judge had not addressed whether an alleged continuing threat, despite letters withdrawing the disciplinary proceedings, met that standard.

6. On holiday pay, the subsequently reported decision in NHS v Larner established that annual leave accrues and carries forward automatically during sickness absence. Notice of an intention to take leave within the leave year is not required. The EAT declined to give prospective guidance on any maximum carry-forward period, leaving that issue for determination after a reasoned tribunal decision if necessary.

• Employment Appeal Tribunal: allowed the employer’s appeal against the protected-disclosure time ruling and substituted a strike-out; dismissed its appeal against the refusal to strike out the holiday-pay claim.
• Employment Tribunal, London Central: at a pre-hearing review, held the protected-disclosure complaint in time and declined to strike out the holiday-pay claim.