Whistleblowing claim fails after retirement break breaks continuity of service
A Service Delivery Manager who alleged she was dismissed for whistleblowing lost her claim after the tribunal found her retirement break broke her continuity of service, meaning she lacked the two years' qualifying service for an ordinary unfair dismissal claim.
1 min read · Last updated 18 May 2026
Case details
- #whistleblowing
- #tupe-transfer
- #retirement-break
- #continuity-of-service
- #disciplinary-process
- #fraud-allegation
- #nhs-counter-fraud
Key facts
- The claimant took a retirement break from 15 July to 15 August 2016, which broke her continuity of service.
- The claimant's employment transferred under TUPE from Barts Health Trust to the respondent on 1 April 2017.
- In August 2017, the claimant claimed payment for additional on-call duties, which she said was authorised by her manager, Jane Baylis.
- The respondent investigated and dismissed the claimant summarily on 9 May 2018 for fraud.
- The claimant alleged she made protected disclosures about TUPE consultation, reception staffing, a CEO not answering a call during a major incident, and a driver contract.
- The tribunal found that the claimant made protected disclosures on 17 March 2017, 30/31 March 2017, 4 June 2017, and 5 October 2017.
Timeline
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Claimant takes retirement break
The claimant retired from her NHS post for financial reasons, taking a break until 15 August 2016.
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Claimant returns to work
The claimant returned to her part-time Service Delivery Manager role after the retirement break.
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First email about TUPE
The claimant emailed Bola Ogundeji asking about continuity of service after the TUPE transfer.
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Email about TUPE consultation
The claimant emailed Bola Ogundeji alleging failure to elect employee representatives for TUPE consultation.
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Grievance email to Mohammed Mohit
The claimant sent a long email complaining about her line manager and raising concerns about a driver answering phones at reception.
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TUPE transfer to respondent
The out-of-hours service transferred from Barts Health Trust to Tower Hamlets GP Care Group CIC.
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Email about CEO not answering call
The claimant emailed managers about Chris Banks not answering his phone during the London Bridge attack response.
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Meeting about on-call cover
The claimant met Jane Baylis to discuss covering on-call duties; the claimant believed she was authorised to claim payment.
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Contact with NHS Counter Fraud
The claimant emailed NHS Counter Fraud about the driver contract procurement issue.
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Claimant dismissed
The claimant was summarily dismissed for fraud after a disciplinary hearing.
The legal issue
The tribunal had to decide whether the claimant had sufficient continuous service to bring an ordinary unfair dismissal claim, and whether her dismissal was because of protected disclosures (whistleblowing) or for a different reason (fraud).
The outcome
The tribunal dismissed the claimant's claims. It found that her retirement break from 15 July to 15 August 2016 broke her continuity of service, meaning she did not have the two years' continuous service required for an ordinary unfair dismissal claim. The tribunal also considered her whistleblowing claim but concluded that the reason for her dismissal was not the protected disclosures she made, but rather the respondent's genuine belief that she had committed fraud by claiming payment for unauthorised on-call duties. No compensation was awarded.
Lessons & takeaways
- A break in service, even for retirement, can reset your continuity of employment and affect your eligibility for unfair dismissal claims.
- Whistleblowing claims do not require a minimum length of service, but you must show that the protected disclosure was the reason for the dismissal.
- If you make protected disclosures, keep clear records of what you said, when, and to whom, as this can be crucial evidence.
- Employers can dismiss for fraud if they have a reasonable belief in the misconduct, even if the employee disputes the facts.
What this case shows
This case illustrates how a seemingly straightforward retirement break can have significant consequences for employment rights. The Service Delivery Manager had worked for the NHS for many years, but when she took a month-long retirement break in 2016, her continuity of service was broken. This meant that when she was later dismissed in 2018, she did not have the two years' continuous service needed to bring an ordinary unfair dismissal claim.
The whistleblowing angle
The claimant argued that her dismissal was because she had made protected disclosures about issues such as TUPE consultation, staffing concerns, and a driver contract. The tribunal accepted that she had made protected disclosures, but it found that the real reason for her dismissal was the respondent's genuine belief that she had committed fraud by claiming payment for on-call duties that were not authorised. This is a key point: even if an employee has made protected disclosures, the employer can still dismiss for a different, fair reason.
What could have been done differently
The claimant could have sought advice before taking the retirement break to understand how it would affect her continuity of service. If she had not taken the break, or if it had been structured differently, she might have had the qualifying service for an unfair dismissal claim. For the employer, the case shows the importance of having a clear disciplinary process and being able to show that the dismissal was based on a reasonable belief in misconduct, not on a protected disclosure.
Why this matters
This case is a reminder that whistleblowing protections are not absolute. Employees who make disclosures are not immune from dismissal for other reasons, such as misconduct. It also highlights the importance of continuity of service for employment rights. Anyone considering a career break or retirement should check how it will affect their continuous employment, especially if they have less than two years' service before the break.
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