Transcription

• Speaker #0

  Today, in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Handa and the Station Hotel Newcastle Limited, and others in which the Employment Appeal Tribunal was asked to consider whether a HR consultant who had been hired to investigate a grievance was acting as the employer's agent and can be liable for the employer's decision to dismiss in reliance on their reports. In this case, a director for a holding company in the hotel sector made various allegations of financial impropriety relating to the running of the business, which he claimed amounted to protected whistleblowing disclosures. Subsequently, various staff members raised grievances, alleging that the director had bullied and harassed them. The employer, via its solicitors, appointed an independent HR consultant to investigate the grievances. who found the grievances substantiated and recommended the matter proceed to a disciplinary hearing. A different independent HR consultant was appointed to conduct the recommended disciplinary hearing, whose post-hearing report stated that the employer could justify the director's dismissal for gross misconduct. The director was subsequently suspended, removed as a director and summarily dismissed for gross misconduct. He brought claims for ordinary unfair dismissal and automatically unfair dismissal. for making protected whistleblowing disclosures, naming several respondents, including both the independent HR consultants, arguing they had acted as the employer's agents and claiming he had been subjected to detriment and dismissal on the grounds of whistleblowing. At a preliminary hearing, the Employment Tribunal struck out the Director's claims against the HR consultants on the basis they had no reasonable prospect of success. The Director appealed to the Employment Appeal Tribunal which dismissed the appeal. The Employment Appeal Tribunal held that the Tribunal had erred in concluding that it was not arguable that the independent HR consultants had been acting as agents of the employer in carrying out the investigative and disciplinary processes they had been hired to undertake. The Employment Appeal Tribunal could see no reason why an independent HR consultant hired to carry out an employment procedure or process on the employer's behalf could not be regarded as the employer's agent while they were undertaking that process. Their external and independent status would not preclude them from being regarded as the employer's agent while they carried out their remit. However, there was no arguable basis to conclude that the HR consultants were co-liable as the employer's agents for its decision to dismiss the director, just because the employer had relied on their reports when making that decision. The director had not claimed that either independent HR consultant had decided on or implemented his dismissal. Allegations that the employer had exerted control over their processes did not provide a basis for holding either of the consultants liable as agents for the dismissal, and the director had not raised any other arguable basis for imposing agency liability on them. Nor had he claimed that either consultant had subjected him to detrimental treatment because of protected whistleblowing disclosures. Therefore, the tribunal did not err in striking out the claims against the independent HR consultants, and the appeal was accordingly dismissed. Look out for further episodes in this series to stay up to date on all things HR and employment law related.