When does the time limit for whistleblowing claims start to run?
This was the question considered by the recent Employment Appeal Tribunal case of Ikejiaku v. The British Institute of Technology UKEAT/0243/19.
Mr Ikejiaku started working for the Respondent in February 2013. He is a qualified solicitor and barrister in Nigeria and was employed by the Respondent as a senior lecturer in business and law. He was given a new contract in February 2016, which purported to change his status from an employee to a self-employed contractor. The purpose behind the new contract was to resolve an ongoing dispute between Mr Ikejiaku and the Respondent relating to pay and payslips, and to provide clarity as to the arrangements between them.
Mr Ikejiaku made two protected disclosures to the Respondent. The first, in October 2015, was that he had contacted HMRC and been informed that the Respondent had not been paying tax and National Insurance contributions in respect of Mr Ikejiaku when it should have been. The second disclosure, in July 2017, was that he had been told to give a pass mark to some students who had been found to be copying from each other.
Mr Ikejiaku was dismissed the day after the second disclosure. Unsurprisingly, he brought a claim of automatic unfair dismissal relying on the July 2017 disclosure. He also brought a claim for detriment as a result of whistleblowing. He alleged that the reason he had been given the new contract in February 2016 was the first protected disclosure in October 2015.
The Employment Tribunal found that the October 2015 disclosure was a material and effective cause of the Respondent requiring Mr Ikejiaku to enter into the new contract. It also found that the change of status from employee to self-employed contractor was a detriment.
The Employment Tribunal found that, despite the February 2016 contract which stated that Mr Ikejiaku was a self-employed contractor, he had been an employee throughout his time with the Respondent. The Employment Tribunal concluded that Mr Ikejiaku was automatically unfairly dismissed as a result of the July 2017 protected disclosure. However, it found that the detriment claim was out of time and should have been brought within three months of the Respondent requiring Mr Ikejiaku to enter into the new contract in February 2016. The Employment Tribunal also found that it was reasonably practicable for Mr Ikejiaku to have brought his claim in time and so declined to extend the time limit in this case.
A worker must bring a claim of detriment due to whistleblowing within three months of the act or failure to act that is the subject of the complaint. However, where that act extends over a period of time, the claim must be brought within three months of the last day of that period.
Mr Ikejiaku appealed to the Employment Appeal Tribunal. He argued that the contract change in February 2016 was not a "one-off" event but an act extending over a period of time. He said that, because the contract continued to be in place until his dismissal in July 2017, the act complained of was effectively extending over a period of time.
The Employment Appeal Tribunal concluded that the imposition of the new contract on Mr Ikejiaku was a single event and not a continuing act. It highlighted the importance of distinguishing between an ongoing detriment and an ongoing act. While it may be possible to say that the detriment of not being an employee was ongoing, the act that caused that detriment was not. Therefore, the time limit for bringing a claim began at the time that contract was imposed on Mr Ikejiaku.
It can often be difficult to distinguish between a one-off act, which has an ongoing detrimental result, and a continuing act, which extends over a period of time. However, it is important to do so because it will determine when time starts running for the purposes of bringing a claim.
Previous cases have shown that it is possible for decisions made in reference to a policy or procedure to amount to a continuing act. For example, one case found that where an employer operates a detrimental rule or practice, such as a failure to recognise service abroad for the purposes of a pension arrangement, that will constitute an act extending over a period of time.
This case is interesting in that it provides a useful contrast to some previous decisions regarding ongoing acts. Other similar examples of one-off acts which may have an ongoing detrimental effect include a refusal to upgrade an employee and banning construction workers from a building site.