ON APPEAL FROM The Employment Appeal Tribunal
Mr Justice Langstaff (The President)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LADY JUSTICE BLACK
| Oliver Thomas Flynn
|- and -
|Warrior Square Recoveries Ltd
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Ms Caroline Musgrave (instructed by Kennedy's Law LLP) for the Respondent
Crown Copyright ©
Lord Justice Maurice Kay:
The statutory provisions
"…a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the person has made a protected disclosure."
The time limit is provided by Section 48 (3) which states that an ET:
"shall not consider a complaint…unless it is presented –
(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where the act or failure is part of a series of acts or failures, the last of them, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
The decision of the ET
"The Claimant alleges that he has been subjected to a detriment as a result of this disclosure in that he has been under threat of disciplinary action and legal action for defamation. The respondent's case is that those threats were lifted at the latest by 30 November 2009. However, the Claimant has been consistent and persistent in his view that these threats are still present and, in his mind, repeated by the Respondent's actions. If he is correct, then the detriment continues and his claim is within time."
The decision of the EAT
"the latest any identified act, or deliberate failure to act, could have occurred, on the facts of this case either as alleged in the proceedings before the [ET] or found by the judge herself, could be 18 March 2010"
No submissions were made in favour of an extension of time pursuant to section 48(3) (b).
The factual history in more detail
"The allegations were withdrawn and the proceedings withdrawn subsequently"
"…the disciplinary action initiated against you in 2006 was withdrawn and so there are no "live" allegations against you"
No defamation proceedings were ever issued.
(1) The wider allegations of detriment-causing acts
"…they feature… in the skeleton argument of Mr Flynn for these proceedings as real matters that caused him a detriment that went on until he began proceedings and afterwards … there is no material to show that any one of them occurred any later than 18 March 2010."
(2) The threats in relation to disciplinary proceedings and a defamation action.
"not advising [Mr Flynn] that the defamation action was withdrawn until Mr Martin's letter dated 30 November 2009…"
Moreover, Mr Flynn's self-written ET1 appears to make the same point. I find it impossible to escape the conclusion that, on any objective view, the threat of a defamation action (which, in any event, would have been statute-barred by October 2007, subject to a highly improbable extension of time) had disappeared by 30 November 2009.
Lord Justice Sullivan
Lady Justice Black