Advice to employers after dismissal case.
Like many employment claims, a claim for whistleblowing detriment under section 47B of the Employment Rights Act 1996 must be brought within three months of the act or failure to act which the employee is complaining about. Where an act extends over a period, the date of the act is treated as the last day of that period. It’s all about the act and when that happened, rather than the consequences of the act. A continuing detriment is not the same thing as a continuing act.
In Ikejiaku v British Institute of Technology, the employee was a senior lecturer. He brought two detriment claims based on protected disclosures he had made during his employment. He made the first disclosure a year before he was dismissed, when he blew the whistle to HMRC about suspected tax evasion by his employer. After that, the employer made detrimental changes to his employment contract. The day before he was dismissed, the employee had blown the whistle on his manager who had told him to pass students who had been copying. An employment tribunal found that he had been automatically unfairly dismissed because of the protected disclosure made the day before his dismissal. However, the contract imposition the year before was a one-off act, albeit with continuing consequences, and so the time limit for bringing that claim had started ticking a year earlier and was now out of time. It was not an act which extended over a period just because the new contract continued to be in place. The tribunal also found that there should be no ACAS uplift for the employer’s failure to follow the ACAS code because it didn’t apply to protected disclosure dismissals. The employee appealed.
The EAT agreed with the tribunal that the detriment claim with regards the contract change was out of time. Time starts to run from the act, not the continuing detriment that an employee may suffer because of the act. A continuing act might typically be a policy or rule, but that was not the case here. It wasn’t an act extending over a period either. The contract change was a simple one-off act. However, the EAT allowed the appeal on the ACAS code uplift. The ACAS code also applies to grievances raised by employees. The employer accepted that the protected disclosure the day before the employee’s dismissal was a grievance and so the matter was sent back to decide whether an uplift applied on that basis.
One point for employers to take away here is the applicability of the ACAS code even when the employee had not mentioned the grievance part of it in his claim form. The EAT found that this should have been considered by the tribunal regardless. It is also a comfort to know that a one-off act such as a contract change will not open an employer up to liability outside of the normal time limit for bringing a claim. As always though, employers must take care when employees raise complaints that might be protected disclosures. A knee jerk reaction can come back to bite you.
