The government is canvassing opinion on options to reform the law governing the use of...
Employment Law Cases
Whistleblowing time limits: one-off act or continuing act?
Ikejiaku v British Institute of Technology
A change to or the imposition of a new employment contract is a one-off event with continuing consequences - not a continuing act for the purposes of bringing a whistleblowing detriment claim. Also, the tribunal should have considered an uplift in compensation because of a failure to follow the ACAS code of practice as the making of a protected disclosure was a grievance.
Whistleblowing detriment claims must generally be presented within three months of the act complained about, but this can be extended in certain circumstances. Identifying when the act (or omission occurred) is crucial and should not be confused with the detriment itself. Often this is straightforward, e.g. a dismissal which is a single act taking place on the date the contract is terminated and time starts to run from that date. But what about where there are continuing detriments extending over a period? This will depend on whether the act was a ‘once and for all’ act with continuing consequences, when time starts to run from that act, or a continuing act such as a policy or rule where continuing decisions have to be made, in which case time will run from when each decision is made.
Mr Ikejiaku worked as a lecturer for BIT. He made protected disclosures and the day after making his second, he was dismissed. The tribunal held that the sole reason for his dismissal was his protected disclosure and his claim of automatic unfair dismissal succeeded. Mr Ikejiaku also brought claims for detriments caused by him making protected disclosures, including that he had been ‘forced/tricked into a purported contract’ when asked to sign a new contract. The alleged effect was that this contract purportedly changed his status from an employee to a self-employed consultant. The tribunal agreed that this was a detriment. However, for the purposes of time limits, the tribunal held that the introduction of the new contract was a one-off act with continuing consequences – not an act which extended over a period until his dismissal. Therefore, Mr Ikejiaku’s claim was out of time because it had been reasonably practicable for him to present his claim within the three-month time limit - which he had failed to do. Mr Ikejiaku appealed.
The appeal was dismissed.
The issue for the EAT was whether the imposition of the new contract could be classed as:
- a ‘once and for all’ act with continuing consequences (as the employer argued), or
- a continuing act, i.e. which extends over the whole period ending with the dismissal (as Mr Ikejiaku argued)
Looking at the case law, the EAT said that a typical example of a continuing act is one in which the relevant act ‘constitutes a rule or policy by reference to which decisions are made from time to time’, i.e. because the refreshing of that decision effectively reignites the creation and continuation of the act. By contrast, examples of one-off acts include the act of dismissal, a refusal to upgrade, and the banning of construction workers from a site.
Here the EAT had no hesitation in upholding the tribunal’s decision. The act here did not amount to a policy or rule, nor was there any basis for concluding that it was an act extending over a period. It was a one-off act, albeit with continuing consequences.
The EAT overturned the tribunal’s decision that the compensation should not be uplifted. The ACAS Code of Practice applies to disciplinary and grievance matters and the making of a protected disclosure was clearly a grievance.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0243_19_0705.html
Although this case concerned time limits in a whistleblowing detriment claim, the principles extend across other areas, such as discrimination, where an unlawful detriment forms the basis of a claim.