An Uplifting Award!
Jackie Denham summarises some key developments in whistleblowing caselaw.
The Employment Appeal Tribunal (EAT) have given clarification on when a detrimental act in response to a whistleblowing disclosure can be regarded as continuing in order to determine the time limit within which the claim be made. The same case has also clarified whether the ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) could potentially apply when an employee is dismissed after they have made a protected disclosure.
Mr Ikejiaku was a senior lecturer at the British Institute of Technology (BIT). During his contract with BIT he had made a protected disclosure regarding potential tax evasion and the payment of income tax and NI contributions. Following that disclosure he was required to enter into a new contract to clarify BIT’s position on the employment and tax status of their relationship. Over a year later he made a further unrelated protected disclosure and was dismissed the following day. He claimed compensation relating to the detrimental requirement to enter into the new contract as well as automatic unfair dismissal.
If an employee has suffered a detriment as a result of making a whistleblowing disclosure they have 3 months in which to bring a claim. The 3 months begins on the date of the detrimental act or omission unless the relevant act extends over a period of time or is part of a series of similar acts. Mr Ikejiaku argued that the requirement to enter into a new contract was a continuing act of detriment that he had suffered and therefore that his claim was still within the three-month time limit.
The EAT found that requiring him to sign up to new contractual terms was a “one off” act and not a continuing act. It did not amount to a policy or rule by reference to which decisions are made from time to time and it was not an ongoing act extending over a period of time. The fact that the consequences of the detrimental act had continued for some time did not mean the actual act had continued. This part of his claim was therefore dismissed for being out of time.
The Tribunal found that he had indeed been automatically unfairly dismissed in response to his second protected disclosure. In the event that the ACAS Code applies, a Tribunal is entitled to consider awarding an uplift to an award of up to 25%. On this basis, as the BIT had followed no procedure in connection with Mr Ikejiaku’s whistleblowing, he sought an uplift in the compensation awarded. The EAT confirmed that because the protected disclosure fell within the definition of grievance (being a concern, problem or complaint) this could fall within the scope of the ACAS Code and an uplift in compensation could be considered.
The key takeaways of this case for employers are that they should always investigate whistleblowing allegations in the same way as grievances in order to ensure a proper process is followed. Also, when faced with a potential claim, it is always important to carefully consider the limitation periods that apply. Working out when the limitation period starts running can sometimes be quite complex and there are often arguments around whether it was not reasonably practicable for the claim to be presented in time or whether it is just and equitable for the time period to be extended. However, if a claim can be struck out for being out of time this needs to be argued from the outset and can significantly save on legal costs and management time. If you need any advice on the time limits that may apply in any given scenario please do get in touch.