Whistleblowing detriment claim: time limit and the application of the ACAS Code

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The whistleblowing case of Ikejiaku v British Institute of Technology Ltd considered the application of the ACAS Code of Practice on Disciplinary and Grievance Procedures, as well as whether imposing a new contract on an employee was a one-off or continuing act for the purposes of calculating the time by which a whistleblowing detriment claim must be brought.

Brian Ikejiaku was employed by the British Institute of Technology (BIT) as a senior lecturer. In October 2015, he made a protected disclosure to BIT’s Principal Director, Mr Farmer, involving concerns that BIT was evading tax. Mr Ikejiaku explained that he had contacted HMRC, which confirmed that BIT was not paying his tax and National Insurance although it should have been. BIT subsequently imposed a new contract on Mr Ikejiaku in March 2016.

In July 2017, Mr Ikejiaku made a further protected disclosure to Mr Farmer about being told to give a pass mark to students who he found had been copying each other in tests. He was dismissed by BIT the following day.

Mr Ikejiaku was successful in his claim of automatic unfair dismissal. The Employment Tribunal held that the sole reason for his dismissal was the protected disclosure he made the previous day. Mr Ikejiaku sought for his compensation to be uplifted in relation to this claim because of BIT’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code). This was refused by the Tribunal as it found that the ACAS Code did not apply.

As to the imposition of a new contract following Mr Ikejiaku’s first protected disclosure, the Tribunal held that Mr Ikejiaku had been subjected to a detriment when the contract was introduced, but that this claim was out of time.

Mr Ikejiaku appealed and the case went to the Employment Appeal Tribunal.

The time limit within which a whistleblowing detriment claim must ordinarily be brought is three months “beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them”. So, was imposing a new contract on Mr Ikejiaku a continuing act, or rather a single act with continuing consequences? Stoole J held that “it was a plain example of a ‘one-off’ act with continuing consequences”, agreeing with the Employment Tribunal decision.

However, Stoole J allowed Mr Ikejiaku’s appeal regarding the ACAS Code. The ACAS Code describes grievances as “concerns, problems, or complaints that employees raise with their employers”. BIT “rightly” accepted that the protected disclosure made by Mr Ikejiaku the day before his dismissal fell within this definition. Thus, Mr Ikejiaku’s unfair dismissal compensation may be increased by up to 25%, due to his employer’s failure to follow the ACAS Code in relation to his second protected disclosure.