Ikejiaku v British Institute of Technology Ltd

For limitation purposes, a tribunal must identify the employer’s act or deliberate failure to act, rather than confuse a continuing detriment with a continuing act. A single act which continues to affect the employment relationship does not thereby extend over a period under section 48 of the Employment Rights Act 1996.

An ACAS uplift may potentially be available in an automatic unfair dismissal claim where the protected disclosure is a grievance within the ACAS Code. The disciplinary part of the Code does not apply where the employee faces no allegation of culpable conduct. Whether a grievance-based uplift was raised is determined by a fair reading of the material before the tribunal.

The claimant was a lecturer employed by the respondent. The Employment Tribunal upheld his claim for automatic unfair dismissal under section 103A of the Employment Rights Act 1996, finding that he was dismissed on the day after making a protected disclosure.

It also found that requiring him to enter a new contract in March 2016 was a protected-disclosure detriment. At the remedy hearing, however, it held that complaint out of time because the contractual imposition was a one-off act with continuing consequences. It also refused an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, treating the ACAS Code as inapplicable.

The claimant appealed both rulings. The central issues were whether the contractual act was continuing for limitation purposes, and whether his application for an ACAS uplift encompassed the Code’s grievance procedure.

1. The appeal was allowed in part. The appeal against the limitation ruling was dismissed. The appeal against refusal of an ACAS uplift was allowed and remitted to the same Employment Tribunal.

2. Section 48 requires identification of the employer’s act or failure to act which caused the detriment. Time runs from that act, and a continuing detriment must not be confused with a continuing act. The liability judgment had found that the only detriment caused by the October 2015 disclosure was the requirement that the claimant enter the new contract. It had rejected a causal connection between that disclosure and the subsequent non-payment of tax or national insurance, absence of payslips or holiday pay, and description of the claimant as a consultant.

3. The introduction of the new contract was a one-off act with continuing consequences. It was neither an act extending over a period under section 48(4)(a) of the Employment Rights Act 1996 nor part of a series of similar acts or failures under section 48(3)(a). Unlike a policy or rule used to make decisions from time to time, it was a single contractual imposition. The complaint was therefore out of time.

4. The Tribunal correctly held that the disciplinary section of the ACAS Code did not apply. That section concerns a complaint or allegation which may lead to disciplinary action, and disciplinary action requires alleged culpable conduct. A protected disclosure could not be a disciplinary allegation, and culpability had played no part in the respondent’s unsuccessful case on the reason for dismissal.

5. However, the protected disclosure made the day before dismissal was a grievance: it raised a concern, problem or complaint with the employer. It could therefore potentially engage section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. On a fair reading of the claimant’s schedule and remedy submissions, his application was not confined to the disciplinary section of the Code. The Tribunal was to reconsider the uplift application by reference to the grievance section of the Code.

• Employment Appeal Tribunal: Appeal allowed in part. The refusal of the ACAS-uplift application was remitted to the same tribunal; the limitation ruling was upheld.
• Employment Tribunal, East London: Liability judgment upheld automatic unfair dismissal under section 103A of the Employment Rights Act 1996 and found a protected-disclosure detriment subject to time. Remedy judgment, sent on 15 April 2019, held the detriment complaint out of time and refused an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.