A whistleblowing detriment claim must be brought within three months of the detrimental act or the last act in a series of detrimental acts. In the recent case of Ikejiaku v British Institute of Technology, the EAT has considered whether imposing a new contract on an employee was a one-off act or a continuing act for the purposes of these time limits.
Mr Ikejiaku worked for the British Institute of Technology as a senior lecturer. In 2015, he made a protected whistleblowing disclosure to the Institute concerning its failure to pay tax and National Insurance correctly in relation to his employment. The Institute responded by imposing a new contract on him which purported to change his status to a self-employed consultant. In 2017, Mr Ikejiaku made a second protected disclosure that he had been told to give a pass mark to some students who had been copying from each other. The next day, he was dismissed. The reason given was that there was a reduced requirement for lecturers. Mr Ikejiaku claimed that he had been automatically unfairly dismissed for whistleblowing and that the new contract imposed on him amounted to a whistleblowing detriment.
The Employment Tribunal found that the sole reason for Mr Ikejaku’s dismissal was the protected disclosure he had made on the previous day and upheld his claim of automatic unfair dismissal. However, it rejected his detriment claim. Although imposing the new contract after his first whistleblowing disclosure in 2015 amounted to an unlawful detriment, time had started to run from the date when the contract was introduced. Since he did not bring his claim within three months of that date, it was out of time.
Mr Ikejaku appealed to the EAT, arguing that the imposition of his new contract amounted to a continuing act because the contract had remained in place until his dismissal. The EAT disagreed, concluding that it was a single event, not a continuing act. The time limit therefore ran from the date of the new contract.
It can be difficult to distinguish between a one-off act which has an ongoing detrimental consequence, and a continuing act which extends over a period of time. As this case illustrates, the distinction is very important for determining when time starts to run for the purposes of bringing a claim. It is worth noting that operating a detrimental rule or practice under a policy or procedure has in some cases been found to amount to a continuing act, for example, where an employer failed to recognise service abroad for the purpose of a pension arrangement or refused to upgrade an employee.
