We have seen a significant increase in employment tribunal claims this academic year. That trend can only continue with the proposals under the Employment Rights Bill to expand employment rights and protections. The approach to claims by individuals has also become far more aggressive and personal, with individuals such as Headteachers and Governors often being named as Respondents to the claim, in addition to the school or MAT as the employer. This can have devastating effects on the individual who is named, which sadly is the intended purpose because it adds an additional pressure point on the employer in the litigation.
As well as other staff and governors being named as individual Respondents, we have seen external third parties, such as HR consultants or independent investigators, also unreasonably drawn into litigation and named as Respondents to a claim, despite not being part of the employer’s organisation and having no say in any decisions relating to the employee.
The recent EAT decision in Handa v The Station Hotel and others [2025] EAT 62 dealt with this very issue.
Facts
There were two investigations carried out by two different external HR consultants as follows:
- Mr Duncan investigated a grievance against the Claimant which was partially upheld. This resulted in a disciplinary investigation.
- Ms McDougall carried out a disciplinary investigation and her report concluded that dismissal for gross misconduct would be justified. This report was used to arrange a disciplinary hearing and a decision was taken by the employer to dismiss the Claimant for gross misconduct.
The Claimant claimed automatic unfair dismissal on grounds of whistleblowing and whistleblowing detriment.
Liability of the investigators
The Claimant sought to hold Mr Duncan and Ms McDougall liable, in addition to the employer. He said that they had acted as agents of the Station Hotel and were therefore liable for detriments (including the dismissal).
The EAT’s decision: external HR consultants not liable
The EAT held on the facts of this case that the two independent investigators were not liable as agents of the employer.
In particulars the EAT found that:
- Consultants can, in principle, act as agents for the employer. But to be liable, they must themselves committed an unlawful act or omission.
- On the evidence available the tribunal was satisfied that neither consultant had actually decided upon or implemented the dismissal (alone or jointly) and a decision on dismissal was not within the remit of the role they were asked to carry out.
- Allegations that the Station Hotel had exerted control over the investigations process did not provide a basis for holding either of them liable as agents for the dismissal.
- The claims against Mr Duncan and Ms McDougall were struck out as having no reasonable prospects of success.
Key takeaways for schools
It is very common for schools and MATs to rely on external third parties for the provision of various services including HR and investigations services. In principle the individuals carrying out those services are likely to be agents of the school or MAT meaning that they could be held liable in a claim. However as established in the above case, there can only be liability where the agents themselves had committed a causative act or omission. For this reason, it is very important to be for any investigation. Schools and MATs should also think about any contract and whether this includes provision for claims, insurance and assistance that the external third party may need to provide in any future claim.
Claimants are becoming increasingly savvier and more creative in how they pursue their claims. Having specialist advisers overseeing the process will help manage the risk.
For advice on any of the issues discussed in this case update, or any other employment, HR or investigations related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690 or our dedicated schools investigations helpdesk on schoolsinvestigations@wslaw.co.uk.