B Kristensen v Portman Healthcare Limited

For ordinary unfair dismissal, the Tribunal must identify the facts or beliefs that caused the employer to dismiss and, where several matters operated, identify the single or composite principal reason. The fairness inquiry under the Employment Rights Act 1996 concerns the employer’s treatment of that established reason; a wish to be rid of an employee does not itself enlarge the inquiry.

For whistleblowing detriment time limits, a disciplinary suspension may extend over a period. The Tribunal must distinguish a continuing act from a one-off act with continuing consequences and decide whether the pleaded detriments form a series of similar acts.

Mr Kristensen, a dental hygienist employed by Portman Healthcare Limited, was summarily dismissed after a dispute involving covert recordings and his allegation to police that a signature on a purported employment contract had been forged. The Employment Tribunal found that the allegation was a protected disclosure, but dismissed his unfair dismissal and protected disclosure detriment complaints after a liability hearing. Its judgment was dated 14 August 2024, with written reasons issued on 23 October 2024.

On appeal, Mr Kristensen challenged the Tribunal’s treatment of the principal reason for dismissal, the scope and causation of the disciplinary investigation, and the time limits for his detriment complaints. The protected disclosure finding was not challenged. The EAT also addressed the outstanding wrongful dismissal complaint. The central issues were whether the Tribunal had properly identified the dismissal reason and whether it had correctly analysed the detriments and limitation questions.

1. Appeal allowed in part. Grounds 3, 6, 7 and 9 succeeded. The Employment Tribunal’s judgment was set aside. The remaining grounds were dismissed.

2. For an unfair dismissal complaint, the Tribunal must first identify the facts known to, or beliefs held by, the employer which caused the dismissal. A generic label such as misconduct does not answer that question. The Tribunal must then identify whether the established reason falls within a statutory category or is some other substantial reason, and assess fairness under section 98(4). The definition in Abernethy v Mott, Hay and Anderson [1974] ICR 323 and the three-stage analysis in Tayeh v Barchester Healthcare Limited were applied.

3. The section 98(4) inquiry concerns whether the employer acted reasonably in treating the reason established under section 98(1)(a) as sufficient. Section 98(4)(b) does not create a separate inquiry into other matters. Where several factors operated, the Tribunal must identify the principal reason and determine whether it was single or composite. The Tribunal did neither: its finding that the reason was misconduct skipped the section 98(1)(a) question. The dismissal reasons were therefore not Meek-compliant. The approach in Smith v Glasgow City District Council [1987] ICR 796, Robinson v Combat Stress EAT 0310/14 and Broecker v Metroline Travel Ltd EAT 0124/16 required the Tribunal to address the possibility of a composite reason. The employer’s motive of wanting to be rid of Mr Kristensen did not, by itself, enlarge the fairness inquiry where the reason was genuine and not a pretext; the distinction in Associated Society of Locomotive Engineers and Fireman v Brady [2006] IRLR 576 was applied.

4. The agreed issue of whether Mr Kristensen was subjected to a disciplinary investigation on the ground of his protected disclosure was not confined to the meeting invitation letter. It included the investigation and disciplinary hearing. Given the Tribunal’s findings that the forgery allegation formed part of the suspension, investigation and charges, it was perverse to conclude that the investigation was in no sense on the ground of the disclosure. The approach in Fecitt and others v NHS Manchester [2012] ICR 372 was applied. The EAT substituted judgment for Mr Kristensen on the pleaded detriments of suspension and disciplinary investigation.

5. A disciplinary suspension is an act extending over a period for section 48(4)(a). The Tribunal was bound by Tait v Redcar and Cleveland Borough Council UKEAT/0096/08, which the EAT followed. The distinction between a continuing act and a one-off act with continuing consequences requires identification of the act or deliberate failure that caused the detriment; the date on which the detriment continues to be experienced is not itself decisive. The EAT relied on Flynn v Warrior Square Recoveries Limited [2014] EWCA Civ 68 and Ikejiaku v British Institute of Technology Limited UKEAT 0243/19.

6. The Tribunal had not decided whether the refusal of access to Mr Kristensen’s personnel file was part of a series of similar acts with the suspension, disciplinary investigation or possibly dismissal. That question, together with the principal reason for dismissal, the fairness of dismissal under sections 98 and 103A, and remedy, was remitted to the same Tribunal. The EAT substituted judgment dismissing the wrongful dismissal complaint.

1. Employment Appeal Tribunal, [2026] EAT 127 : allowed grounds 3, 6, 7 and 9, set aside the Tribunal’s judgment, substituted findings on the protected disclosure detriments and wrongful dismissal complaint, and remitted specified issues.
2. Employment Tribunal, London Central: following a liability hearing, dismissed the unfair dismissal and protected disclosure detriment complaints in a judgment dated 14 August 2024, with written reasons dated 23 October 2024. The wrongful dismissal complaint was not dealt with in that judgment.