Flynn v Warrior Square Recoveries Ltd

The Court of Appeal considered a renewed application for permission to appeal by the claimant in employment tribunal proceedings concerning a whistle‑blowing detriment complaint and arrears of holiday pay. The court applied the time‑limit rules in the Employment Rights Act 1996, in particular that the three‑month limit in section 48 runs from the "act, or any deliberate failure to act" by the employer causing the alleged detriment and that the tribunal has a limited discretion under section 48(3)(b) where it was not "reasonably practicable" to present the claim in time.

The court concluded that most of the applicant's arguments did not establish an arguable relevant act within three months of the proceedings, but identified a potentially arguable point that a subject access request made under the Freedom of Information Act 2000 on 21 May 2010, to which the employer failed to respond within the 40‑day period, could amount to a deliberate failure to act within three months of the claim. On that basis the court granted permission to appeal on that ground but refused permission on two specified grounds (paragraphs 31 and 33 of the grounds of appeal). The court directed a one‑day hearing before a panel of three judges, including an employment law experienced Lord/Lady Justice.

The claimant disclosed alleged misappropriation of money by his employer's directors in December 2005 and later contended that he suffered detriment by reason of making that public interest disclosure. He was invited to a disciplinary hearing in 2006 which was adjourned and never concluded. He fell sick and did not return to work but remained employed until he resigned on 21 May 2010. Two directors threatened defamation proceedings on 20 October 2006 but did not issue proceedings. The claimant presented his employment tribunal claim on 22 September 2010, asserting detriment for failure by the employer to withdraw the threatened libel proceedings and also claiming arrears of holiday pay.

At first instance the Employment Tribunal (Judge Davidson) refused the employer's application to strike out the claims. The employer appealed to the Employment Appeal Tribunal where Langstaff J, as President, upheld the tribunal on the holiday pay point but allowed the employer's appeal in relation to the whistle‑blowing claim, concluding that the three‑month limitation under section 48 of the Employment Rights Act 1996 ran from the employer's latest act or deliberate failure to act, which Langstaff J identified as 18 March 2010, and that the claimant's proceedings of 22 September 2010 were out of time. No case had been advanced below that it had not been "reasonably practicable" to present the claim earlier.

The claimant made a renewed application for permission to appeal to the Court of Appeal. The principal issue identified by the Court of Appeal was whether there was an arguable deliberate failure to act within three months of the proceedings. The court rejected most of the applicant's arguments as unpersuasive but regarded, with some hesitation, the contention that a subject access application made on 21 May 2010 under the Freedom of Information Act 2000 (to which the employer had 40 days to respond but did not comply) could amount to a relevant deliberate failure to act occurring within three months of the tribunal claim. Permission to appeal was therefore granted on that ground. Two grounds were refused: one asserting Judge Davidson failed to consider the "reasonably practicable" point (no such case having been put to her) and a bias point (held to be without merit, reference being made to authorities indicating the proposition is a non‑starter). The Court directed a one‑day hearing before three judges including an experienced employment law Lord/Lady Justice.

Relief sought: compensation for detriment by reason of a public interest disclosure and arrears of holiday pay. Issues framed: (i) whether the whistle‑blowing claim was presented within the statutory three‑month period under section 48, taking account of "act or deliberate failure to act"; (ii) whether it was reasonably practicable to present the claim within that period under section 48(3)(b); (iii) procedural and bias arguments. Reasoning: permission was refused on most grounds, but granted on an arguably tenable point that a failure to respond to a subject access request within the FOIA/response period could constitute a deliberate failure to act within the limitation period and therefore warranted appellate consideration.

Permission to appeal was granted in part. The court refused permission on two specific grounds (paragraphs 31 and 33 of the grounds of appeal) but allowed the renewed application insofar as it raised an arguable point that the employer's failure to respond within the 40‑day period to a subject access request made on 21 May 2010 could amount to a deliberate failure to act within three months under section 48 of the Employment Rights Act 1996. The court directed a one‑day hearing before three judges, including an employment law experienced Lord/Lady Justice.

Employment Tribunal (London Central, Employment Judge Davidson): refusal to strike out claimant's claims. Employment Appeal Tribunal (President Langstaff J, Appeal No: UKEAT/0154/12/KN): allowed employer's appeal in relation to whistle‑blowing claim and struck it out as out of time; holiday pay decision upheld. Elias LJ refused permission to appeal on the papers on 18 March 2013. Court of Appeal (Rimer LJ) renewed permission to appeal in part on 30 July 2013 ([2013] EWCA Civ 917).