Independent investigators not liable for whistleblowing dismissal

Adrian Fryer

When handling high-stakes disciplinary or grievance matters – particularly involving senior staff – many businesses sensibly turn to external HR consultants or investigators to ensure objectivity, professionalism, and compliance. A recent Employment Appeal Tribunal (EAT) decision will come as welcome news for those operating in this space: unless they take an active role in making the actual decision to dismiss, external investigators cannot be held personally liable for alleged discrimination or whistleblowing-related dismissal.

In Handa v The Station Hotel and others, the Claimant brought a claim of automatic unfair dismissal and whistleblowing detriment. He attempted to argue that two external HR consultants – Mr Duncan and Ms McDougall – were personally liable as “agents” of the employer, on the basis that their investigation reports had influenced the dismissal decision.

Mr Duncan had investigated a grievance against the Claimant and found parts of it substantiated. Ms McDougall subsequently conducted a disciplinary investigation and produced a report suggesting dismissal for gross misconduct would be appropriate. The employer, The Station Hotel, relied on that report to make its decision to dismiss.

The EAT rejected the argument that the consultants should be personally liable. It ruled:

• External consultants can, in theory, be agents, but they must carry out a causative act or omission linked to the dismissal to attract liability.
• Neither consultant made nor implemented the dismissal decision – this remained with the employer.
• Even if the employer influenced their work, that alone did not amount to agency or legal liability.

The claims against both consultants were struck out for having no reasonable chance of success.

This decision will bring relief to independent HR professionals and investigators. But it also underscores the need for clear engagement terms. These should clearly define roles, confirm that decision-making rests solely with the employer, and ideally include an indemnity clause in case of future legal claims. Independent support remains a valuable tool – but boundaries must be clear.

Contact Adrian Fryer, Head of Employment.