Mr Brian Ikejiaku v British Institute of Technology Ltd: UKEAT/0243/19/VP

Facts

Mr. Ikejiaku worked as a lecturer at BIT. He made protected disclosures, and the day after the second, he was fired. The tribunal determined that his dismissal was solely due to his protected disclosure, and his claim for automatic unfair dismissal was successful. Mr Ikejiaku also sued for damages caused by his protected disclosures, claiming that he was 'forced/tricked into a bogus contract' when requested to sign a new one. The contract allegedly shifted his status from employee to self-employed consultant. The tribunal agreed that this was detrimental. However, for the purposes of time limits, the tribunal determined that the introduction of the new contract constituted a one-time act with ongoing implications, rather than an act that occurred over a period until his departure. As a result, Mr Ikejiaku's claim was out of time because he might have presented it inside the three-month time limit, which he did not. Mr. Ikejiaku appealed.

Held

The appeal was dismissed.

The question for the EAT was whether the imposition of the new contract could be classified as:

• The employer maintained that the firing was a 'once and for all' act with long-term implications,

• while Mr. Ikejiaku argued that it was a continuous act that lasted until the end.

Due to the fact that the refreshing of that decision effectively reignites the creation and continuation of the act, the EAT stated that a typical example of a continuing act is one in which the relevant act "constitutes a rule or policy by reference to which decisions are made from time to time." This description was made in light of the case law. The act of firing, the refusal to upgrade, and the prohibition of construction workers from entering a site are all examples of one-off acts, in contrast to this.

In this particular case, the EAT did not have any reservations about supporting the verdict of the tribunal. There was no foundation for drawing the conclusion that this act was one that lasted for a period of time, nor did it constitute a policy or norm in this instance. In spite of the fact that it was a one-time occurrence, the ramifications are still ongoing.

The finding of the tribunal that the compensation should not be increased was overruled by the Australian Electoral Commission (EAT). It is very evident that the act of making a protected disclosure constitutes a grievance, given the ACAS Code of Practice applies to both disciplinary and grievance circumstances.

Comment

For the purposes of establishing a whistleblower detriment claim, a change to or the imposition of a new employment contract is not considered a continuing conduct because it is a one-time event that has ongoing implications. Due to the fact that the act of making a protected disclosure was constituted a grievance, the tribunal had to have taken into consideration the possibility of increasing the amount of compensation due to the failure to adhere to the ACAS code of practice.

It is normally required that claims for whistleblowing detriment be presented within three months of the act that is being complained about; however, this time frame can be extended in specific cases. The identification of the time at which the act (or omission) took place is of utmost importance and must not be confused with the actual harm that was caused. There are many instances in which this is a basic matter, such as a dismissal, which is a single act that takes place on the date that the contract is ended and time begins to run from that date. On the other hand, what about situations in which there are ongoing damage that has been going on for a while? It will depend on whether the act was a "once and for all" act with continuing repercussions, at which point time begins to run from that act, or whether it was a continuing act such as a policy or rule where continual decisions have to be made, in which case time will run from the moment that each decision is made.