Emily Edwards
Posted on 27 Oct 2020

Whistleblowing: time limits

The Employment Appeal Tribunal (EAT) has upheld the Employment Tribunal's (ET) decision that, for the purpose of whistleblowing time limits, where the detrimental act was the imposition of a new contract purporting to remove the claimant's employment status, time started to run from the date the new contract was imposed.

Background

Whistleblowing is a term used when an employee (or worker) passes on information concerning wrongdoing, typically in the workplace. If certain criteria are satisfied, then this will be a 'protected disclosure'. If the reason or principal reason for the dismissal of an employee is that they made a protected disclosure then they will have been automatically unfairly dismissed. In addition, they have the right to not suffer a detriment on the grounds that they have made a protected disclosure.

Like most ET claims, claims related to whistleblowing must be submitted before the end of the period of three months beginning with the date of the detrimental act or incident. So, if employment ended on 12 March, the claim must be submitted before midnight on 11 June. It is not always straightforward though, and sometimes it can be difficult to pinpoint exactly when certain acts take place. Where there is a series of similar acts or failures, the last date will be used. In deciding whether a detriment case is brought in time, tribunals must focus on the date of the act giving rise to a detriment, not the consequences that follow.

Ikejiaku v British Institute of Technology Ltd UKEAT/0243/19

Mr Ikejiaku, the Claimant, was employed by the Respondent as a Senior Lecturer who brought claims in relation to two protected disclosures he had made:

  • In October 2015, he had contacted HMRC who had informed him that the Respondent was not paying tax and National Insurance for him when it should have been. As a result, in March 2016, he was provided with a new contract of employment to reflect that he was self-employed;
  • Two years later, on 12 July 2017, he had been told by the Respondent’s Associate Dean, Mr Tanveer, to give a pass mark to some students who the Claimant had found to have been copying from each other in certain test scripts. He was dismissed the following day, an act which his employer argued was due to a reduced need for teachers.

Mr Ikejiaku brought whistleblowing claims which included allegations that he had suffered detriment as a result of his protected disclosure in October 2015. He argued that, as a result of such disclosure, he had been forced to sign a new contract taking effect from March 2016, changing his employment status. This second claim was regarding his dismissal on 13 July 2017, which he argued was a result of him making a protected disclosure the previous day.

ET Decision

When calculating the relevant time limit, the central question in the case was whether imposing a new contract should be regarded as a 'continuing detriment' or a ‘one-off’ act.

The ET held that Mr Ikejiaku had suffered a detriment on the ground of his disclosure in October 2015. However, the ET concluded that the introduction of the new contract in March 2016 was a 'one-off' event; there was no basis for concluding that the imposition of the new contract was a continuing act which extended over the whole period ending with the Claimant's dismissal. Consequently, the detriment claim was out of time, as it would have been reasonably practicable to bring this claim within the three month time limit.

However, it was held that Mr Ikejiaku had been unfairly dismissed on the grounds of the protected disclosure he made in July 2017. Mr Ikeajiaku had also claimed for an uplift in compensation, he argued that the respondent had failed to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code). This uplift award was not granted, as the ET held that disciplinary procedures had no application to dismissals on the grounds of protected disclosures. The Claimant appealed.

What the EAT held

The EAT dismissed Mr Ikejiaku's appeal on the time issue for the detriment claim; the ET's decision that the imposition of the new contract was a one-off event with continuing consequences was upheld. With regard to the Acas Code uplift issue, the appeal was allowed. The EAT held that the ET should have dealt with the issue and therefore it has been remitted to the ET for reconsideration

What this means for employers

This judgment confirms that the discipline section of the Acas Code does not apply to a dismissal due to a protected disclosure on the basis that such a disclosure could never be a ground for disciplinary action; the issue of the claimant's "culpability" will not be relevant. By allowing this appeal in relation to the Acas Code uplift issue, the EAT have shown that the Acas Code should not be overlooked by employers despite it being silent on whether or not it applies to dismissals by reason of a protected disclosure.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards or Rachael Lloyd to discuss any issues you are facing.