The claimant, a qualified solicitor and barrister in Nigeria, worked for the respondent as a senior lecturer in business and law.   The claimant began working for the respondent in 2013 and one of the issues in this case was the effect that a ‘new contract’ had in March 2016 which purported to change the claimant’s status from an employee to a self-employed consultant.   The Tribunal, at first instance, held that the contract did not change the legal nature of the employment relationship but rather was drawn up to resolve an ongoing dispute as to pay and payslips that the claimant had raised.

The index issue in the case arose from protected disclosures the claimant made to the respondent’s Principal Director, Mr Farmer, in October 2015 and 12th July 2017. The first disclosure stated that the respondent was not paying his national insurance and tax and the second related to a conversation with the Associate Dean who requested that he give pass marks to some students who the claimant had found to be copying from each other.

The claimant was dismissed the next day, 13th July.  The respondent sought to argue that it was for some other substantial reason as a result of a contract being terminated by one of its partner Universities. The Tribunal rejected this argument instead finding that the claimant had been subject to an automatic unfair dismissal under Section 103A of the Employment Rights Act 1996 (Article 134A of the Employment Rights (NI) Order 1996) on the basis of a protected disclosure.   The claimant sought an uplift in compensation as a result of the dismissal being automatically unfair.  This was refused by the Tribunal as the disciplinary procedures within the ACAS Code did not apply to dismissals on the basis of a protected disclosure.

The claimant also brought a claim of detriment as a result of the protected disclosure vis-à-vis the new contract signed in March 2016 on foot of the protected disclosure in October 2015. The Tribunal held that it was a ‘one-off’ act and as a result time started to run at that point.  This meant that particular claim was brought out of time and it was not reasonably practicable to extend time.   The claimant appealed both this decision and the failure to give an uplift to the EAT.

The EAT reaffirmed the view that the ‘act’ of the new contract was not a continuing one and the time began to run when the contract was signed.  They also held that it did not matter whether the claimant had knowledge of the detriment. For an act to be continuing the EAT stated that an example would be where it is the imposition of a policy or a rule that continues to have an effect.  The new contract was not a rule or policy but rather a one-off act meaning that the appeal was dismissed.

On the point of an uplift to compensation, the EAT stated that the protected disclosure should have been treated as a ‘grievance’ which would trigger the ACAS Codes.  Indeed, at the hearing the respondent accepted that a protected disclosure would fall under the meaning of a grievance, that being a ‘concern, problem or complaint’.  For this reason, the appeal was allowed, and the case was remitted back to the Tribunal for a determination on the uplift of compensation.

Practical Lessons

This case provides an eminently sensible approach to uplift in compensation when a dismissal is made in relation to a protected disclosure.  It would create an odd loophole not to allow an uplift where the dismissal is based upon a protected disclosure because it is not deemed to be a ‘grievance’.   The EAT have clarified that there is application, and the uplift can be applicable in those situations.  The case also provides clarification on the distinction between one-off and ‘continuing’ acts with policies/rules being regarded as continuing so that may have to be taken into account when considering whether a time limit applies to a claim submitted to the Tribunal. 
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-brian-ikejiaku-v-british-institute-of-technology-ltd-ukeat-0243-19-vp