Whistleblowing and Unfair Dismissal
Rad Kohanzad acted for Mr Kristensen, the Appellant, in Kristensen v Portman Healthcare Ltd [2026] EAT 127, an appeal concerning whistleblowing detriment, the time limits for bringing whistleblowing claims, and the legal test for identifying the reason for dismissal. The Employment Appeal Tribunal (EAT) allowed four grounds of appeal, finding errors in the Employment Tribunal’s treatment of the disciplinary process and suspension, and its failure to identify the employer’s principal reason for dismissal. It substituted findings on two whistleblowing detriments and remitted the remaining issues for reconsideration.
Background to the appeal
Mr Kristensen had worked as a dental hygienist for Portman Healthcare Ltd and was dismissed on 30 September 2021. During a workplace dispute, he alleged that his signature had been forged on a purported employment contract from 2016. He raised the allegation in the presence of the police on 16 August 2021. The Employment Tribunal accepted that this allegation amounted to a protected disclosure for the purposes of the Employment Rights Act 1996.
Mr Kristensen was subsequently disciplined over, among other matters, his failure to provide all his covert workplace recordings, his allegation of forgery and his recording of a suspension meeting. The employer dismissed him, relying on three allegations of misconduct.
The Employment Tribunal rejected his claims of automatic unfair dismissal for whistleblowing, ordinary unfair dismissal and detriment for making protected disclosures. It found that the disclosure was not the principal reason for dismissal and that the proven whistleblowing detriments—refusal of access to his personnel file and suspension—had been brought outside the applicable time limit.
Mr Kristensen appealed. The EAT considered several grounds concerning the identification of the reason for dismissal, the scope of the disciplinary investigation, and the time limits governing whistleblowing detriment claims.
Identifying the principal reason for dismissal
Under section 98 of the Employment Rights Act 1996, an Employment Tribunal must first determine the reason, or principal reason where there is more than one, for dismissal. It then considers whether that reason is potentially fair and, if so, whether the employer acted reasonably in treating it as sufficient to dismiss.
The EAT emphasised that the first stage requires more than attaching a general label such as “misconduct” to the dismissal. The Tribunal must identify the particular facts or beliefs that caused the employer to dismiss the employee. Where several factors influenced the decision, it must determine which was the principal reason—or whether the principal reason was a combination of factors.
Here, the Employment Tribunal had found that the protected disclosure was one factor in the employer’s decision, but not the principal reason. It also recorded that the employer may have taken advantage of the employee’s misconduct to remove someone it regarded as troublesome. However, when addressing ordinary unfair dismissal, the Tribunal described the reason simply as “misconduct”, without identifying the relevant facts and beliefs that constituted the principal reason.
The EAT rejected Mr Kristensen’s argument that the fairness assessment under section 98(4) required the Tribunal to take account of all factors that influenced the employer, even if they were not part of the principal reason it identified. The statutory fairness assessment concerns the reason established under section 98(1)(a). Nor does an employer’s desire to be rid of an employee necessarily make a genuine reason for dismissal unfair: a distinction must be drawn between the reason for dismissal and the employer’s motive or enthusiasm for acting on that reason.
However, the EAT accepted the alternative argument that the Employment Tribunal had failed to identify the principal reason at all. Given the multiple factors in play—including the protected disclosure, which the employer had treated as an allegation of gross misconduct—the Tribunal needed to explain what it found to be the principal reason and whether that reason was a single factor or a composite one.
This ground succeeded because the Tribunal had not carried out, or adequately explained, a necessary stage of the statutory analysis. The EAT did not itself determine the principal reason for dismissal; that question was remitted to the Employment Tribunal.
Whistleblowing detriment: disciplinary investigation and suspension
Section 47B of the Employment Rights Act 1996 protects workers from detriment by their employer on the ground that they have made a protected disclosure. The Employment Tribunal had accepted that the refusal of access to Mr Kristensen’s personnel file and his suspension were whistleblowing detriments. It had, however, rejected his complaint about the subsequent disciplinary investigation.
The EAT held that the Tribunal had interpreted the phrase “the disciplinary investigation” in the agreed list of issues too narrowly. It had treated the investigation as limited by the letter inviting Mr Kristensen to an initial investigatory meeting. But the forgery allegation became part of the investigation and the subsequent disciplinary process, and was included among the charges considered at the disciplinary hearing.
The EAT concluded that the disciplinary hearing itself could properly fall within the pleaded expression “the disciplinary investigation”. Given the Employment Tribunal’s own factual findings, it was perverse to conclude that the disciplinary investigation had in no sense been conducted on the ground of the protected disclosure.
The EAT therefore upheld this ground of appeal. It substituted a finding that subjecting Mr Kristensen to the disciplinary investigation was a detriment on the ground that he had made a protected disclosure. It also substituted a finding that his suspension on 16 August 2021 was a whistleblowing detriment.
Whistleblowing time limits: suspension and a series of acts
Whistleblowing detriment claims are subject to the time limits in section 48 of the Employment Rights Act 1996. Broadly, a claim must be brought within three months of the relevant act, subject to the statutory provisions for a series of similar acts and for cases where it was not reasonably practicable to present the claim in time.
The EAT addressed two distinct issues.
First, was the suspension a continuing act?
The Employment Tribunal had treated the suspension as a one-off act with continuing consequences. The EAT held that this was an error of law. Applying the earlier decision in Tait v Redcar and Cleveland Borough Council, it concluded that a disciplinary suspension can be an act extending over a period: the employee’s continued state of suspension pending disciplinary proceedings is capable of being a continuation of the original act, rather than merely its consequence.
The distinction matters because the date on which a continuing act ends may affect the limitation calculation.
Second, could the refusal of access to the personnel file form part of a series of similar acts?
The Employment Tribunal had not addressed an issue in the agreed list of issues asking whether the alleged detriments formed part of a series of similar acts for the purposes of section 48(3)(a). Having found errors concerning the suspension and disciplinary investigation, the EAT held that the Tribunal needed to reconsider whether the earlier refusal of access to the personnel file formed part of such a series.
The EAT did not decide that every act complained of formed part of a series, nor did it finally resolve the limitation issue. That question was remitted for determination by the Employment Tribunal.
What the EAT decided
The appeal succeeded on grounds 3, 6, 7 and 9. The remaining grounds that were pursued were dismissed.
The EAT set aside the Employment Tribunal’s judgment and:
Substituted findings that the suspension and disciplinary investigation were whistleblowing detriments.
Dismissed the wrongful dismissal claim, substituting a finding that it failed.
Remitted the remaining issues to the same Employment Tribunal, including the principal reason for dismissal, whether the dismissal was automatically or ordinarily unfair, whether the refusal of access to the personnel file formed part of a series of similar acts, and remedy.
The EAT did not decide that Mr Kristensen had been unfairly dismissed. That question, together with the principal reason for dismissal, remained to be determined on remission.
Relevance to Employment Tribunal appeals
This judgment illustrates several issues that can arise when assessing whether an Employment Tribunal decision contains an error of law.
A Tribunal must identify the principal reason for dismissal by examining the facts and beliefs that caused the employer to act; a broad label such as “misconduct” may not be enough where several factors were involved. The judgment also shows why the wording of the agreed list of issues matters: a Tribunal may err if it construes a pleaded allegation too narrowly and thereby fails to consider the conduct actually in issue.
For limitation purposes, it is important to distinguish a continuing act from a one-off act that has continuing consequences. In whistleblowing cases, that distinction can affect when the time limit starts or ends. Whether multiple detriments amount to a series of similar acts must also be considered where the issue arises on the pleadings and evidence.
These are case-specific conclusions, not a guarantee that a similar argument will succeed in another appeal. An EAT appeal must identify an arguable error of law in the Employment Tribunal’s decision; disagreement with the Tribunal’s assessment of the evidence is not, by itself, enough.
If you have received an unfavourable Employment Tribunal decision involving whistleblowing, dismissal or limitation issues, I can review the decision and advise on whether there may be grounds for appeal before you decide whether to incur the further costs of pursuing one. If you decide to proceed, I can also advise on and represent you in the EAT.
Find out more about my Employment Tribunal appeal review and advice service
Case details
Case: Mr B Kristensen v Portman Healthcare Ltd
Neutral citation: [2026] EAT 127
Judgment date: 3 September 2026
Judge: The Hon. Lord Fairley, President of the Employment Appeal Tribunal
Case number: EA-2024-001579-DXA
Counsel for the Appellant: Rad Kohanzad and Emma Darlow Stearn, instructed by the Free Representation Unit
Counsel for the Respondent: Rachel Mellor, instructed by Robinson Ralph Solicitors
Outcome: Appeal allowed in part; findings substituted and remaining issues remitted to the same Employment Tribunal.
