Whistleblowing: Employment tribunal time limits and the application of the ACAS code of practice

The Employment Appeal Tribunal has held that the ACAS Code of Practice on Disciplinary and Grievance Procedures may apply to whistleblowing allegations. It has also held that the imposition of a new contract was a one-off act with continuing consequences, not an act extending over a period, write Zoë Wigan, Ceri Fuller and Hilary Larter.

In Ikejiaku v British Institute of Technology Ltd UKEAT/0243/19 Mr Ikejiaku was employed by the British Institute of Technology Limited (“the British Institute”) as a senior lecturer. In 2015, he informed the British Institute that he had contacted the HMRC, which had confirmed that his employer should have been paying his tax and National Insurance, but that it had not been doing so. A new contract was imposed on him a few months later which purported to change his status to that of a self-employed consultant.

In July 2017, Mr Ikejiaku raised a concern that he had been told by the Associate Dean to give a pass mark to some students who he had found to have been copying each other. The next day, Mr Ikejaiku was dismissed.The reason given for the dismissal was that there was a reduced requirement for lecturers.

Mr Ikejiaku claimed that he had been automatically unfairly dismissed for whistleblowing and that the imposition of the new contract in 2016 was a whistleblowing detriment.

The employment tribunal agreed that Mr Ikejaiku had been automatically unfairly dismissed for whistleblowing. It also considered that the British Institute had followed no procedure. However “with reluctance” it held that the ACAS Code of Practice on Disciplinary and Grievance Procedures did not apply because disciplinary procedures do not apply to whistleblowing dismissals. This meant that Mr Ikejiaku’s compensatory award could not benefit from an uplift for breach of the Code.

The employment tribunal found that the new contract had been imposed because Mr Ikejiaku had blown the whistle. However, the claim was out of time, because the imposition of the new contract was a one off act with continuing consequences rather than a continuing act or course of conduct. This meant that the clock started ticking for employment tribunal time limits from the date on which the new contract was imposed. Had the employment tribunal considered there to have been a continuing act, the time limits would not have started running until the contract terminated, and the claim would not have been out of time.

Mr Ikejiaku appealed to the EAT in relation to both points.

The EAT upheld his appeal in relation to the ACAS Code. It found that the employment tribunal had been correct to find that disciplinary procedures did not apply to whistleblowing dismissals. However, the grievance section of the ACAS Code applies to “concerns, problems, or complaints” raised by employees. The whistleblowing allegation made by Mr Ikejiaku the day before he was dismissed fell into this category, so the Code would potentially apply. This matter was remitted to the employment tribunal for consideration.

The EAT dismissed the appeal in relation to time limits.

What does this mean for employers?

The EAT’s decision that the imposition of a new contract can be a one off act, rather than a continuing act, may be useful for employers defending whistleblowing claims.

Employers must make sure that they follow their own grievance policies (which should incorporate all elements of the ACAS Code) in dealing with concerns raised by employees which may be whistleblowing allegations. If employers have a separate whistleblowing policy and procedure, which allows for concerns to be raised, as a result of this case they should consider the wording of these policies to check they comply with the requirements for handling grievances set out in the ACAS Code.

Zoë Wigan is a consultant, Ceri Fuller is Practice Development Manager (Legal Director) and Hilary Larter is a consultant at DAC Beachcroft.