Insights

Nighat Sahi

Published 8 February 2021
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Time limit for a whistleblowing detriment claim and the Acas code of practice

A recent employment law case has examined the time limit for bringing a whistleblowing detriment claim as well as imposing a penalty for failure to adhere to the Acas Code of Practice on Disciplinary and Grievance Procedures (‘the Acas Code’).

Whistleblowing occurs when an employee reports wrongdoing by their employer that is in the public interest, known as a protected disclosure. This could be a criminal offence, breaking the law, putting someone’s health and safety in danger, risk or damage to the environment, a miscarriage of justice or covering up someone else’s wrongdoing. 

A whistleblower is protected by law from unfair treatment or job loss.

An allegation of whistleblowing can be raised at any time following the event, or even before it occurs, however there are time limits in respect of bringing a claim if detriment is experienced. 

The claim for compensation following detriment should be issued within three months of the incident that is the subject of the whistleblowing allegation. The important date is when the act complained of occurred, not when the detriment occurred. 

If the act was a one-off, then the date when time begins to run can be clearly identified. However, where the act is a series of events or an ongoing act such as a new policy, then the time will run from each implementation of the policy.

Whistleblowing can be raised by an employee by way of a formal grievance using the employer’s grievance procedure, which should follow the Acas Code. 

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

The recent case of Ikejiaku v British Institute of Technology Ltd considered time limits in whistleblowing claims and the implications of failing to follow the Acas Code.

The facts

The British Institute of Technology (BIT) employed Mr Ikejiaku as a senior lecturer. Mr Ikejiaku made a protected disclosure to BIT’s Principal Director that he believed BIT to be evading tax as he had been in touch with HM Revenue & Customs who had told him that his tax and National Insurance had not been paid. Five months later, in March 2016, BIT imposed a new contract on Mr Ikejiaku.

In July 2017, Mr Ikejiaku made a second protected disclosure to BIT’s Principal Director alleging that he had been told to give a pass mark to students who had been copying each other in an exam. He was dismissed the day after raising the issue.

Case and appeal

An employment tribunal found that Mr Ikejiaku had been unfairly dismissed purely on the grounds of his protected disclosure. He asked for his compensation to be increased because BIT had failed to follow the Acas Code. The employment tribunal held that the Acas Code did not apply to disciplinary procedures relating to protected disclosures and did not increase his compensation.

Mr Ikejiaku also raised the fact that the new contract that had been imposed on him was detrimental. The tribunal held that although imposing a new contract had been detrimental, he was out of time to raise this issue as the law states that there is a three-month period for bringing a whistleblowing detriment claim ‘beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them’. 

Mr Ikejiaku took his claim to the Employment Appeal Tribunal (EAT), claiming that the new contract was part of a series of acts, not an isolated event.

He also asked the EAT to consider whether he should in fact receive an uplift in compensation because of BIT’s failure to follow the Acas Code.

The EAT held that the imposition of a new contract was ‘a plain example of a “one-off” act with continuing consequences’ and not something which was continuing over a period of time. This meant that the employment tribunal had been correct to disallow the claim because it was out of time.

It was noted that a continuing act was not to be confused with continuing detriment. The time would always run from the date of the act, whether or not the claimant was aware of the possibility of resulting detriment. The tribunal added that it would have been reasonably practical for Mr Ikejiaku to bring a claim within the three months allowed.

With regard to the Acas Code however, it should have been adhered to. Acas identifies grievances as ‘concerns, problems, or complaints’ raised by employees, which Mr Ikejiaku’s issue clearly was. The discipline section of the Acas Code does not apply as a protected disclosure and should never result in disciplinary action.

Raising a whistleblowing allegation equated to a grievance, and failing to follow the Acas Code meant that compensation could be increased. An uplift of 25 per cent was awarded to Mr Ikejiaku.

What this means for employers

The case emphasises the importance for employers of following the Acas Code in whistleblowing cases, even though it does not specifically state that it applies to dismissal following a protected disclosure. It should be remembered that an employer ought to have their own grievance procedure in place and that this should incorporate all of the Acas Code requirements.

With regard to the issue of whether an incident forms part of a series or is a one-off event, the decision will apply across other areas, such as discrimination claims, and could be useful in raising a defence where an incident was not initially complained about. 

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