EAT holds imposing a new contract was not a continuing act
Monday 12th October 2020
In Ikejiaku v British Institute of Technology Limited the EAT confirmed that the imposition of a new contract was not a continuing act and therefore set time running for the purposes of bringing a protected disclosure detriment claim.
Mr Ikejiaku was a senior lecturer at the British Institute of Technology from February 2013 until his dismissal. In October 2015, Mr Ikejiaku made a protected disclosure, informing his employer that he had contacted HMRC and had received confirmation that the necessary tax and National Insurance was not being paid. Effective 1 March 2016, a new contract purported to change Mr Ikejiaku’s employment status from employee to self-employed consultant. Notwithstanding the new contract, the ET held that Mr Ikejiaku was an employee at all times from February 2013 until his dismissal.
On 12 July 2017, Mr Ikejiaku made another protected disclosure, detailing how he had been told by the Associate Dean to give passing marks to students who had been found to have copied from each other. He was dismissed the next day. Mr Ikejiaku brought claims for automatic unfair dismissal and unlawful detriment.
The ET held that the introduction of the new contract in March 2016 was an unlawful detriment, but the claim was out of time, having been brought after dismissal. The imposition of the new contract was a one-off event with continuing consequences, not an act which extended over a period of time. The time limit therefore ran from the imposition of the new contract and the ET found that it had been reasonably practicable for Mr Ikejiaku to bring the claim within the required 3-month period. The EAT agreed, highlighting that a continuing act should not be confused with a continuing detriment and confirmed that time runs from the date of the act, regardless of whether a claimant is aware of the detriment that might result.
The ET upheld Mr Ikejiaku’s claim for automatic unfair dismissal, finding that the sole reason for dismissal had been the protected disclosure he made the previous day. However, the ET did not uplift compensation for a failure to comply with a relevant ACAS Code, considering that disciplinary procedures had no application to dismissal on the grounds of protected disclosure. Although the EAT agreed on this point, it found that the protected disclosure was a grievance within the ACAS Code and remitted the uplift point back to the ET.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.