Flynn v Warrior Square Recoveries Ltd

For a detriment claim arising from a protected disclosure, time runs under section 48(3)(a) of the Employment Rights Act 1996 from the employer’s act or deliberate failure to act, or the last such act in a series. It does not run from the date when the detriment is first experienced. A continuing detriment is not necessarily a continuing cause: the claimant must identify a later or continuing act or failure by the employer. The issue is assessed objectively, not by the claimant’s continuing belief that a threat remains. On appeal, a claimant cannot widen the case by raising detriment-causing acts not determined by the tribunal below.

The appellant alleged that he had been victimised for making a potential protected disclosure concerning alleged misappropriation by company directors. Disciplinary proceedings and threatened defamation proceedings followed. The allegations and proceedings were later withdrawn.

He commenced Employment Tribunal proceedings on 22 September 2010. The Employment Tribunal concluded that the claim was in time, but the Employment Appeal Tribunal, presided over by Mr Justice Langstaff, held that the claim was out of time and had confused continuing detriment with a continuing cause of action. The appeal concerned the identification and timing of the relevant acts or failures under the Employment Rights Act 1996, and whether the claimant could rely on additional alleged detriments not determined below.

The Court of Appeal, with Lord Justice Maurice Kay giving the judgment and Lord Justice Sullivan and Lady Justice Black agreeing, unanimously dismissed the appeal.

1. Limitation. Section 47B(1) of the Employment Rights Act 1996 identifies the relevant employer act or deliberate failure to act. Under section 48(3)(a), time runs from the date of that act or failure, or from the last act or failure where there is a series. It runs from the conduct causing the detriment, not from the date when the detriment is first suffered.
2. Continuing detriment. A claimant alleging a continuing detriment must identify a continuing or later act or deliberate failure to act. The continuing effect of an earlier act, or the claimant’s continuing concern, does not create a continuing cause of action. The question must be assessed objectively.
3. Scope of the appeal. The Employment Tribunal had dealt only with the alleged threats of disciplinary and defamation proceedings. It would be wrong, on an appeal limited to errors of law, to introduce other alleged acts or failures which had not been determined below and in respect of which there were no specific findings on limitation.
4. Application. The disciplinary threat ended no later than 30 November 2009. The defamation threat had the same factual basis and, objectively, also disappeared by that date. The March 2010 correspondence confirmed that no allegations remained live. The relevant acts and failures therefore ended well before the three-month period preceding the claim issued in September 2010. No case for an extension under section 48(3)(b) was advanced. The EAT had correctly identified a fundamental legal error and reached the only reasonable conclusion: the protected-disclosure detriment claim was significantly out of time.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 68, dismissed the appeal.
• Employment Appeal Tribunal: In UKEAT/0129/11/DA, Mr Justice Langstaff held that the protected-disclosure detriment proceedings were out of time.
• Employment Tribunal: On 8 December 2011, Employment Judge Davidson concluded that the proceedings had been commenced in time.