External HR Consultants Not Liable for Whistleblowing Dismissal

A recent ruling from the Employment Appeal Tribunal (EAT) has clarified the legal boundaries for external HR consultants involved in disciplinary processes offering some reassurance to consultants and the employers who engage them.

In Handa v The Station Hotel and others, a claim was brought against two external HR professionals — Mr Duncan and Ms McDougall — following the dismissal of an employee who alleged he had been unfairly dismissed for whistleblowing.

The Case

• Mr Duncan was instructed by the Station Hotel to investigate a grievance against the Claimant. His report partially upheld the complaint.
• That led to a disciplinary investigation carried out by Ms McDougall, also an external HR consultant. Her report concluded that dismissal for gross misconduct could be justified.
• Based on these reports, the Station Hotel decided to proceed with a disciplinary hearing, which ultimately resulted in the Claimant’s dismissal.

The Claimant attempted to argue that the consultants were acting as agents of the employer, and therefore personally liable for whistleblowing detriment, including his dismissal.  The Tribunal disagreed.

Key findings from the EAT included:

• While external consultants can act as agents of an employer, liability only arises if they have directly carried out a causative act or omission.
• Neither Mr Duncan nor Ms McDougall made or implemented the decision to dismiss — nor was this within the scope of their roles.
• The employer’s involvement in their investigations did not, on its own, establish that the consultants were agents responsible for the dismissal.

As a result, the claims against both consultants were struck out as having no reasonable prospect of success.

Why this matters

This case provides important clarity for HR professionals working externally. It confirms that consultants are not automatically exposed to liability for whistleblowing-related claims simply because their reports inform an employer’s decision-making unless they directly take or implement the contested action themselves.

Please get in touch if you have any questions regarding the issues discussed in this article. 

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