Flynn v Warrior Square Recoveries Ltd

The appeal concerns the time limit for a whistleblowing (protected disclosure) complaint under the Employment Rights Act 1996. The Court of Appeal agreed with the Employment Appeal Tribunal that the Employment Tribunal erred in law by focussing on a continuing detriment rather than identifying the specific act, or deliberate failure to act, which caused the detriment for the purposes of section 48(3). The tribunal had limited the protected disclosure detriment to threats of disciplinary proceedings and a defamation action; on an objective assessment those threats ceased well before the three month period running up to the presentation of the claim. No application for an extension of time under section 48(3)(b) was advanced or made out.

Material subsidiary findings were that other alleged detriments (sick pay, holiday pay and Freedom of Information Act complaints) were not the focus of the PID claim before the Employment Judge and, in any event, did not extend the relevant chronology into time. The result was that the PID complaint was out of time and the appeal was dismissed.

Background and parties: The appellant, Oliver Flynn, brought claims in the Employment Tribunal including a protected disclosure (whistleblowing) complaint under section 47B of the Employment Rights Act 1996. He alleged detriment arising from disclosure that two directors had misappropriated funds. The respondent was Warrior Square Recoveries Ltd, at the material time owned by Kennedys. After internal investigation and disciplinary steps, correspondence in 2009 and 2010 indicated that allegations had been withdrawn. Mr Flynn stayed on long-term sick leave and resigned in May 2010.

Procedural history: Mr Flynn issued ET proceedings on 22 September 2010. The Employment Tribunal (Employment Judge Davidson) found the PID claim to be within time on 8 December 2011. The Employment Appeal Tribunal (Langstaff J, UKEAT/0129/11/DA) held the ET had erred in law and concluded the complaint was out of time. Mr Flynn appealed to the Court of Appeal.

Nature of the claim/application: The claim was a victimisation/whistleblowing complaint seeking to rely on protected disclosure protection under section 47B. The issue was whether the complaint was presented within the three month time limit in section 48(3), or whether an extension under section 48(3)(b) was available because it was not reasonably practicable earlier to present the complaint.

Issues framed by the court:

• Was the Employment Tribunal correct to treat the detriment as continuing such that the claim was within section 48(3)(a)?
• Did the Employment Tribunal fail to identify the specific act or deliberate failure to act which caused the detriment?
• Could any wider alleged detriments (sick pay, holiday pay, Freedom of Information Act non-responses) either be regarded as part of the PID detriment or extend the relevant chronology into time?
• Was there any basis to extend time under section 48(3)(b)?

Court’s reasoning and conclusion: The Court of Appeal held the ET had erred in law by concentrating on a continuing detriment rather than the act or failure to act which caused it. The ET had confined the PID complaint to threats of disciplinary proceedings and a defamation action. On an objective assessment, those threats, and any failure to withdraw them, had ceased by 30 November 2009 (and in any event by March 2010), which was well before the three month period preceding the presentation of the claim in September 2010. The wider alleged detriments were not the PID focus before the Employment Judge and did not extend the chronology into time; the single Freedom of Information Act request which partly fell into the three month period did not alter that conclusion. No timely or sustainable case for extending time under section 48(3)(b) existed. The EAT had therefore reached the only reasonable conclusion that the PID claim was out of time. The Court of Appeal dismissed the appeal.

The appeal is dismissed. The Employment Appeal Tribunal correctly identified that the Employment Tribunal erred in law by treating the complaint as a continuing detriment rather than identifying the specific act or deliberate failure to act under section 48(3). The objective facts showed the relevant threats and failures to act had ceased well before the three month period prior to presentation of the claim and no extension under section 48(3)(b) could be made out.

Employment Tribunal (Employment Judge Davidson) 8 December 2011: held the PID claim was within time; Employment Appeal Tribunal (Langstaff J) UKEAT/0129/11/DA: found the ET made an error of law and held the PID claim was out of time; appeal to Court of Appeal [2014] EWCA Civ 68 (this judgment) dismissed.