The claimant made a protected disclosure on 2005, went off sick in 2006 and resigned in 2010. The respondent threatened to sue him for defamation. He asked them in March 2010 whether they were withdrawing this threat but they failed to respond. He presented his whistleblowing claim in September 2010, the detriment that the claimant claimed to have suffered being the respondent's failure to withdraw the threat of libel proceedings. The claim was struck out by the ET, and their decision upheld by the EAT, because the latest date upon which any relevant act or failure to act could arguably have occurred was ruled to be March 2010. The claimant submitted at the Court of Appeal that, in May 2010, he had made a subject access disclosure application to the respondent under the Freedom of Information Act 2000, the purpose being the provision to him of information as to whether or not the defamation claim was being pursued. The respondent had 40 days to comply with the request, but it did not do so. The claimant said that the expiration of the 40 days marked another deliberate failure by the respondent to act, following which the tribunal proceedings were issued within three months.

The Court of Appeal granted, with some hesitation, permission to appeal and directed that one day be allowed for the hearing and including a judge with experience in employment law.

___________________

Case No: A2/2012/3029

Neutral Citation Number: [2013] EWCA Civ 917

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Mr Justice Langstaff (the President)

Appeal No: UKEAT/0154/12/KN

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30/07/2013

Before :

LORD JUSTICE RIMER

• - - - - - - - - - - - - - - - - - - - -

Between :

OLIVER THOMAS FLYNN (Appellant)

- and -

WARRIOR SQUARE RECOVERIES LIMITED (Respondent)

• - - - - - - - - - - - - - - - - - - - -

• - - - - - - - - - - - - - - - - - - - -

Mr Al Mustakim (instructed by Direct Access) for the Applicant, Oliver Flynn

The Respondent was not represented

Hearing date: 6 June 2013

• - - - - - - - - - - - - - - - - - - - -

Judgment

Lord Justice Rimer :

1. This is a renewed application for permission to appeal by Oliver Flynn. Elias LJ refused permission on the papers on 18 March 2013. The applicant is the claimant in employment tribunal proceedings. His former employer, Warrior Square Recoveries Limited ('Warrior'), is the respondent. His claim, in the London Central Employment Tribunal, was for compensation for detriment suffered by reason of the making of a public interest disclosure and for arrears of holiday pay. Warrior sought at a pre-hearing review to strike both claims out, but Employment Judge Davidson refused to do so.

1. Warrior appealed to the EAT. The appeal was heard by the President, Langstaff J, who upheld the ET's decision in relation to holiday pay, in respect of which no question arises, but allowed Warrior's appeal against the refusal to strike out the whistle-blowing claim, in respect of which a question does arise.

1. Langstaff J referred to sections 47B and 48 of the Employment Rights Act 1996 and noted that the three-month time limit in the latter for the bringing of the complaint ran from the 'act, or any deliberate failure to act' by the employer causing the alleged detriment. He held that the applicant's claim had not been brought in time.

1. The relevant disclosure was made in December 2005. The applicant's allegation was of misappropriation of money by Warrior's directors. In 2006, he was invited to a disciplinary hearing of what was said to be a false allegation by him of fraud against the directors. The hearing was adjourned, and was never concluded before being formally withdrawn. The applicant fell sick in 2006 and did not return to work although he remained in Warrior's employment until 21 May 2010, when he resigned. In the meantime, on 20 October 2006, he was threatened with legal proceedings for defamation by two directors against whom he had made the allegations. In the event, he was not sued. He presented his claim to the tribunal on 22 September 2010.

1. The applicant's complaint is that he was never told that the threatened defamation claim was not to be proceeded with. His wife wrote to Warrior on 15 March 2010 asking for clarification that the two directors were withdrawing their threat to sue, which the response of 18 March 2010 failed to provide. The detriment of which the applicant complains in consequence of his disclosure of December 2005 is that Warrior failed to withdraw the threat of libel proceedings.

1. Langstaff J identified 18 March 2010 as the latest date upon which any relevant act or failure to act could arguably have occurred, with the consequence that the applicant's proceedings commenced over three months later on 22 September 2010 were out of time. As no case had been made to the ET that it had not been 'reasonably practicable' for the applicant to present his claim within the three-month period (section 48(3)(b) of the 1996 Act), Langstaff J concluded that he could and should substitute a decision striking out the whistle-blowing claim.

1. Mr Mustakim, for the applicant, advanced submissions on various different bases, each said to show it to be properly arguable that Warrior had committed a relevant act or failure to act within three months of the commencement of the proceedings. I found most of them difficult to follow, although in so far as I was able to, they appeared to me to land their shots short of the target.

1. The only argument that appeared to me arguably to have some legs to it was that on 21 May 2010 the applicant made a subject access disclosure application to Warrior under the Freedom of Information Act 2000, the purpose being the provision to him of information as to whether or not the defamation claim was being pursued. Warrior had 40 days to comply with the request, but it did not do so. It is said that the expiration of the 40 days marked another deliberate failure by Warrior to act, following which the tribunal proceedings were issued within three months.

1. With some hesitation, I regard this ground as sufficient to justify permission to appeal. Save that I refuse permission to appeal on paragraphs 31 and 33 of the grounds of appeal, I do not propose to rule separately on the other grounds: as I am giving permission on the ground just mentioned, they can be argued too, and I would not expect them to occupy much of the court's time. As to the two grounds I am refusing, paragraph 31 asserts that Judge Davidson was wrong not to consider the 'reasonably practicable' point. As, however, no such case was made to her, it cannot be made now. As for the paragraph 33 bias point, there is nothing in it. The proposition that a full-time judge ought not to hear a case in which a member of his former chambers is counsel is a non-runner: Taylor and another v. Lawrence and another [2003] QB 528, paragraphs 62, 63; and Smith v.Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370, paragraph 17. I record that Mr Mustakim relied on neither ground before me.

1. I direct that a day be allowed for the hearing, before a court of three judges who may include a High Court Judge. The constitution should include a Lord/Lady Justice with experience in employment law.