By Josh Hornsey & Hilary Larter
|Published 08 October 2026
In this case, the EAT held that a disciplinary suspension is an act "extending over a period" for the purposes of the time limit in a whistleblowing detriment claim, and that an employment tribunal had failed to consider whether the detriments complained of were part of a series of similar acts.
Workers have the right not to be subjected to any detriment by any act, or deliberate failure to act, by an employer on the ground that the worker has made a protected disclosure (whistleblowing detriment). A whistleblowing detriment claim must generally be brought within three months of the act or failure to act complained of. Where that act or failure is part of a series of similar acts or failures, time runs from the last of them.
Please note that the time limit was recently amended to six months for detriments from 1 October 2026 onwards - for more information on legislative developments please read our tracker here.
Mr Kristensen was a dental hygienist and was employed by a dental practice in 2008. The practice was sold to the second owners in 2013, and was sold again in 2017 to the third owners, Portman Healthcare Limited (Portman).
Mr Kristensen covertly recorded conversations with his colleagues and managers from 2015 onwards because of his belief that the second owners were "toxic". The second owners asked him to sign a new contract of employment in 2016, but he refused. In May 2021, Portman's practice manager held a protected conversation with Mr Kristensen and made an offer encouraging him to leave the practice. Mr Kristensen recorded this conversation covertly.
Mr Kristensen then raised a number of grievances and used his covert recordings to support his allegations. He also admitted he was in possession of further recordings. Portman asked him to hand over the recordings and informed him that a failure to do so would amount to gross misconduct.
Portman also showed Mr Kristensen a signed contract of employment from 2016, which he believed was a forgery given his refusal to sign the contract. Mr Kristensen phoned the police and, when they attended, he alleged in an officer's presence that his signature had been forged, and asked to be given his personnel file. The Practice Manager refused and later that day he was suspended pending a disciplinary investigation into his alleged misconduct, namely his refusal to hand over the recordings. The suspension letter referred to the allegation of forgery and the fact the police had attended the practice.
Portman did not separately investigate Mr Kristensen's allegation that the contract was forged. Mr Kristensen was later dismissed for misconduct following a disciplinary hearing on the basis that he had failed to hand over the recordings, had made untrue allegations of forgery in bad faith, and had made unauthorised recordings of meetings.
Mr Kristensen brought a number of claims in the employment tribunal including for whistleblowing detriment. The tribunal found that his allegation of forgery in the presence of the police was a protected disclosure, and that the refusal of access to his personnel file and his suspension later that day were detriments on the grounds of the protected disclosure.
However, it found that the disciplinary investigation taken as a whole was not a detriment. It held that the suspension was a "one-off" act with continuing consequences rather than an act extending over a period. This meant that the last detriment was the act of suspension, so by the time Mr Kristensen submitted his claim it was out of time. The detriment claim was dismissed and Mr Kristensen appealed.
The EAT allowed the appeal, holding that a disciplinary suspension is "clearly" an act extending over a period: the state of affairs in which the employee remains suspended is a continuation of the initial act of suspension, not merely a consequence of it. The tribunal had therefore erred in treating the suspension as a "one-off" act.
Further, the tribunal's finding that the disciplinary investigation was not a detriment was perverse. This is because the suspension was part of the investigation. The suspension had been found to be a detriment because of Mr Kristensen's protected disclosure. If part of the investigation was because of a protected disclosure, it followed that the investigation was too.
The EAT also found that the tribunal had wrongly treated the scope of the disciplinary investigation as simply the investigation meeting. The investigation included the later disciplinary hearing, at which the forgery allegation (and therefore the protected disclosure) featured. The detriment therefore extended to the whole process.
Finally, the EAT found that the tribunal had not considered whether the proven detriments were part of a series of similar acts, including whether the refusal of access to the personnel file formed part of such a series together with the suspension and the disciplinary investigation. The latter brought the claim in time.
Because only one conclusion was possible on the tribunal's findings, the EAT substituted a finding that the whistleblowing detriment complaint succeeded in respect of the suspension and the disciplinary investigation. It remitted to the same tribunal the question of whether refusing access to the personnel file was part of a series of similar acts.
This case is a reminder that disciplinary action connected to an employee's protected disclosure carries significant risk. Employers should take care to separate the alleged misconduct from the disclosure itself. This is best achieved by first investigating the whistleblowing allegations before taking disciplinary action.
The fact that a disciplinary suspension that was imposed on the ground of a protected disclosure will amount to a continuing act for the purposes of limitation makes it more difficult for employers to seek dismissal of such a claim on the basis that it was brought out of time. It is therefore even more important to investigate whistleblowing allegations properly.
