Key takeaways
HR consultants may still act on the employer’s behalf
Even external professionals can be considered agents if they carry out key employment processes.
Tribunal error didn’t change the outcome
The tribunal wrongly dismissed the idea of agency but the claims still lacked legal grounds.
Reports alone don’t create liability
Employers relying on HR reports doesn’t make consultants co-liable for dismissal decisions.
Employers sometimes rely on independent and impartial HR consultants to conduct investigations or undertake disciplinary or grievances processes on their behalf. The EAT has recently considered whether these HR consultants will be acting as the employer’s agent.
H, a director, worked for his family’s holding company which operates several hotels. H had been dismissed for gross misconduct following an investigation by an independent HR consultant (into bullying and harassment grievances raised against H) and a disciplinary hearing conducted by a different independent HR consultant. H alleged his dismissal was motivated by the fact he had made protected whistleblowing disclosures relating to financial impropriety within the business. H brought claims against several respondents, including against the two independent HR professionals arguing they had acted as his employer’s agents. The employment tribunal struck out H’s claims against the HR professionals at a preliminary hearing, on the basis those claims had no reasonable prospect of success.
The EAT dismissed H’s appeal against that decision and upheld the tribunal’s decision. The tribunal had wrongly concluded that it was not arguable that the independent HR consultants had been acting as the employer’s agents. An independent HR consultant hired to carry out an employment process on the employer’s behalf ‘might’ possibly be acting as the employer’s agent while they were undertaking that process. The fact they held an external and independent status does not preclude them from being an agent of the employer. However, despite this error, the tribunal had not erred in striking out H’s claims against the HR consultants. The fact that his employer had relied on the HR consultants’ reports to dismiss him, did not provide H with an arguable basis to establish they were co-liable for the employer’s decision to dismiss. Neither independent HR consultant had decided upon or implemented his dismissal, H’s allegations that his employer had controlled their ‘independent’ processes did not provide a basis for agency liability, and H had not alleged that either HR consultant had themselves subjected him to a detriment for making whistleblowing disclosures.
Handa -v- The Station Hotel (Newcastle) Ltd and Ors [2025] EAT 62