In order to decide whether a claim has been brought within the three-month whistleblowing time limit, tribunals sometimes have to distinguish between a “one-off” and a continuing act. In Ikejiaku v British Institute of Technology Ltd, the Employment Appeal Tribunal (EAT) held that the introduction of a new contract was a one-off act (albeit with continuing consequences), as opposed to a continuing act and the claim was therefore out of time.
Basic facts
Mr Ikejiaku, a senior lecturer, made the first of two protected disclosures (blew the whistle) in October 2015. Based on information from HMRC, he informed the Institute that he was aware that it had not been paying his tax and national insurance. In March 2016, he was given a new contract which purported to change his status from employee to self-employed consultant.
He blew the whistle again on 12 July 2017 when he claimed that he was pressurised to give a pass mark to some students who Mr Ikejiaku had thought had been copying from each other. He was dismissed on 13 July after making this disclosure.
He lodged claims for automatic unfair dismissal under section 103A of the Employment Rights Act (ERA) as well as unlawful detriments for making the disclosures under section 47B ERA, among other things.
Relevant law
Section 47B(1) ERA states that: "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 worker has made a protected disclosure."
Section 48(3) states that tribunals will not consider a complaint under section 47B unless it was presented within three months “beginning with the date of the act…or where that act…is part of a series of similar acts…,the last of them, or “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.”
Tribunal decision
The tribunal upheld Mr Ikejiaku’s claim of automatic unfair dismissal based on the protected disclosure he made on the day prior to his dismissal on 13 July 2017.
Although it also held that he had been subjected to a detriment when the Institute gave him a new contract in March 2016 because of the protected disclosure he made in October 2015, it decided that this constituted a one-off event with continuing consequences, as opposed to a continuing act that extended over a period of time. As it had been reasonably practicable for him to present his claim within three months of being issued with the new contract, the tribunal held that it had been presented out of time.
Mr Ikejiaku appealed, arguing that the new agreement was “not an abstract entity” but rather that the imposition of the new contract from March 2016 was a continuing act which continued until his dismissal in July 2017 and was not a single one-off event.
EAT decision
Dismissing the appeal, the EAT held that it was incumbent on tribunals to identify the “act” (or the failure to act) separately from the “detriment” that the claimant has identified (even though they may often amount to the same thing).
In this case, the act was the introduction/imposition of a new contract and was not material to the subsequent “detriments”. It was important not to confuse continuing detriments with continuing acts. As such, it was crucial to focus on the act of the requirement to enter the new contract as opposed to the continuing effects of the contract, namely the failure of the employer to pay Mr Ikejiaku’s tax and national insurance.
Case law showed that a continuing act was often one where it constitutes a rule or policy that the employer refers to from time to time. Examples of a “one-off” act on the other hand include dismissal, a failure to upgrade and the banning of construction workers from a site.
The EAT held that the act in this case did not constitute a policy or rule and it was an obvious example of a “one-off” act, albeit with continuing consequences.