An error of judgment

A very brief post, on something in a High Court judgment which may merely be a slip.

On 6 June 2013 a renewed application to appeal to the Employment Appeal Tribunal was heard in the High Court. The applicant, Flynn, is seeking compensation for detriment suffered by reason of the making of a public interest disclosure (the “whistle-blowing claim”) and for arrears for holiday pay. The respondent, Warrior Square Recoveries Limited (“Warrior”) made an initially unsuccessful attempt to have the claims struck out. On appeal the Employment Appeal Tribunal refused to strike out the holiday arrears claim, but struck out the whistle-blowing claim because it had not been brought within the requisite three-month time-limit. Flynn now sought to reinstate the whistle blowing claim.

Lord Justice Rimer was not impressed by the arguments to reinstate, but, rather reluctantly, found one sufficiently compelling to justify permission

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.

With some hesitation, I regard this ground as sufficient to justify permission to appeal…

The perspicacious among you might have noticed something. Subject access, and the 40 day time for compliance, are terms not from the Freedom of Information Act 2000 (FOIA), but from section 7 of the Data Protection Act 1998 (DPA). FOIA only applies to public authorities, of which Warrior is not one. If a public authority receives a request seeking subject access under FOIA it should apply the exemption at section 40(1) and “the public authority will need to deal with it in accordance with the DPA” (Information Commissioner guidance). An employer, such as Warrior, which is not a public authority, has no such obligations under FOIA. It probably should have still, on receipt of a letter purporting to be a FOIA request, have read it and recognised it as being, rather, a subject access request under DPA (under which it does have obligations to respond). But I’m not sure I would criticise it too much for seeing the words “Freedom of Information Act”, and thinking it didn’t need a response. I’m also not sure that the failure to respond to a non-existent obligation under an Act to which the company was not subject should have counted for the purposes of deciding when the time for lodging a claim started.

As I say, this may be a transcription error, or the judge might have mistakenly cited FOIA when he meant DPA, but the fact that this point was determinative of whether to allow permission to appeal means the error (whether it was an actual one, or just in the handed down judgment) is very odd.

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Filed under Data Protection, employment, Freedom of Information, Uncategorized

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