Flynn v Warrior Square Recoveries Ltd

In a renewed application for permission to appeal, an argument is sufficiently arguable where a subject access request may have generated a further deliberate failure to act within the statutory time limit for a detriment complaint. Permission may therefore be granted so that the point can be argued on appeal. A point not advanced below cannot ordinarily be raised for the first time on appeal. A bias argument based solely on counsel’s former membership of the judge’s chambers was untenable.

The claimant brought Employment Rights Act 1996 claims for detriment arising from a public interest disclosure and for holiday pay. The Employment Tribunal refused to strike out the claims. The Employment Appeal Tribunal upheld the holiday-pay decision but allowed the employer’s appeal on the whistle-blowing claim, holding that it was out of time.

The claimant sought renewed permission to appeal. He argued that a subject access request made under the Freedom of Information Act 2000, which the employer failed to answer within 40 days, could amount to a further deliberate failure to act. He also sought to raise a reasonable-practicability point and alleged bias.

1. Permission. Permission was granted on the subject-access-request ground. The request sought information about whether threatened defamation proceedings were being pursued. The employer had 40 days to comply but did not do so. The expiry of that period was arguably a further deliberate failure to act, and the proceedings were issued within three months of it. The point was sufficient to justify permission, although the court expressed hesitation.
2. Reasonable practicability. The Employment Appeal Tribunal had held that the latest possible relevant act or deliberate failure to act was 18 March 2010, making the claim issued on 22 September 2010 out of time. No case had been made before the Employment Tribunal that it was not reasonably practicable to present the complaint within the statutory period. Permission was refused on that ground because it could not be raised for the first time on appeal.
3. Bias. The proposition that a full-time judge should not hear a case merely because counsel was a member of the judge’s former chambers was a non-runner. The court relied on Taylor and another v Lawrence and another [2003] QB 528, paragraphs 62 and 63, and Smith v Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370, paragraph 17. Permission was refused on the bias ground.
4. The remaining grounds were not ruled upon separately because they could be argued under the permission granted. The appeal was directed to be heard for one day before a court of three judges, potentially including a High Court judge, with a Lord or Lady Justice experienced in employment law.

• Court of Appeal (Civil Division): granted permission on the subject-access-request ground and refused permission on the reasonable-practicability and bias grounds. The proposed appeal was directed to a three-judge constitution.
• Employment Appeal Tribunal: allowed the employer’s appeal against refusal to strike out the whistle-blowing claim, holding that it was out of time, and upheld the decision concerning holiday pay. Appeal No. UKEAT/0154/12/KN.
• London Central Employment Tribunal: refused the employer’s application to strike out the detriment and holiday-pay claims.