Employment Appeal Tribunal Overturns Whistleblowing and Unfair Dismissal Ruling
The Employment Appeal Tribunal has set aside a previous ruling, finding legal errors in how the tribunal handled whistleblowing and unfair dismissal claims.
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Tribunal Errors Identified in Whistleblowing Case
The Employment Appeal Tribunal (EAT) has handed down a significant judgment in the case of Kristensen v Portman Healthcare Ltd. President Lord Fairley allowed several grounds of appeal, resulting in the original tribunal’s decision being set aside and partially remitted for further consideration.
Mr Kristensen, a dental hygienist, was dismissed by Portman Healthcare in 2021. He subsequently brought claims for automatically unfair dismissal, ordinary unfair dismissal, and protected disclosure detriment. While an Employment Tribunal initially dismissed these claims, the EAT found that the tribunal had made several critical errors in its legal reasoning.
Key Legal Findings
The EAT concluded that the original tribunal failed to identify the employer's principal reason for dismissal, which is a mandatory requirement under section 98 of the Employment Rights Act 1996. By failing to determine whether the dismissal was based on a single reason or a composite of factors, the tribunal’s decision was deemed not compliant with legal standards.
Furthermore, the EAT ruled that the tribunal erred in its handling of the whistleblowing detriments. It held that the disciplinary suspension should have been viewed as an act extending over a period, rather than a one-off event. The tribunal also took an overly restrictive approach to what constituted the disciplinary investigation, failing to recognise it as a potential act of detriment influenced by the appellant's protected disclosure.
Case Remitted for Reconsideration
While the EAT upheld the original findings regarding wrongful dismissal, it has ordered that the remaining issues be returned to the original tribunal. The tribunal must now redetermine the principal reason for the dismissal, evaluate the fairness of that dismissal under the relevant sections of the Employment Rights Act, and consider whether specific acts formed a series of similar failures.
Read the entire judgment here: Kristensen v Portman Healthcare Ltd [2026] EAT 127
