Whistleblowing detriment not ‘continuous’, says EAT

The Employment Appeal Tribunal (EAT) has ruled, in Ikejiaju v British Institute of Technology Ltd, that the imposition of a new contract was a one-off event, and not a continuing act, for the purposes of whistleblowing detriment.

This case concerned a senior lecturer who made a protected disclosure, accusing the organisation he worked for of tax evasion. Following this disclosure, the organisation had introduced a new contract, something that ultimately broke down the relationship between the two parties. Nearly two years later, the claimant made a second protected disclosure, and this time was dismissed from his role the following day.

He later brought numerous claims to the Employment Tribunal (ET), including automatic unfair dismissal on the grounds of making a protected disclosure. He also claimed that he had been subjected to a detriment due to his previous protected disclosure that had continued from the imposition of the new contract to his eventual dismissal.

The ET agreed that his dismissal had been automatically unfair on the grounds of the second protected disclosure made a day before his dismissal. They also agreed that he had been subjected to a detriment following the first disclosure due to the imposition of a new contract. However, they did not uphold the claim for detriment, saying it had been presented out of time.

The ET went on to explain that the time limit provisions outlined in the Employment Rights Act 1996 meant that the new contract had been a ‘one-off act’ and not an act which extended over a period of time. Considering whether it would have been reasonably practicable for a claim to be brought in time, the ET concluded that it was; there was no issue, from what they could see, that would have prevented such a claim. They also reluctantly declined to provide an uplift for failure to follow the ACAS Code of Practice, arguing that the Code does not specify that it should apply in dismissals relating to a protected disclosure.

The claimant appealed against both rulings.

The EAT dismissed the appeal against the detriment ruling, but upheld the appeal concerning failure to uplift the award.

In forming their decision, the EAT outlined that it was important to differentiate between an ‘act’ and the detriment that follows it. Here, the act in question had been the imposition of a new contract and the claimant had not demonstrated that any additional various allegations against the organisation were related to his original protected disclosure. On that basis, this new contract had been a one-off event with lasting consequences but did not constitute a ‘continuing act’.

Turning then to the ACAS uplift claim, the EAT held that the tribunal had failed to consider if the second protected disclosure, made the day prior to dismissal, could have been interpreted under the grievance section of the ACAS code. This is because the Code refers to ‘concerns, problems or complaints’ raised by employees. To this end, they remitted this point back to the ET for reconsideration.

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