Employment Rights Bill update: Government issues roadmap and implementation timeline
The Employment Rights Bill (“the Bill”) remains on the agenda across the sector and we expect that to continue into the new academic year, and beyond. Once implemented, there is no doubt that the Bill will represent the biggest overhaul in employment rights for a generation. Until now there has been a lack of specific timelines, with Government only committing to say that the reforms would be coming into force “no earlier than 2026” making it difficult for employers to plan ahead. That has now been addressed by the Government’s Implementing the Employment Rights Bill: roadmap policy paper issued on 1 July 2025 which sets out the Government’s consultation strategy and implementation timeline. This has provided some much-needed clarity for employers, and we summarise below what schools and MATs need to know.
Is the Bill law?
No. The Bill is currently in the House of Lords, after which it will go to its final stages before receiving Royal Assent to become law.
What changes should schools be aware of?
Please see our previous updates on the Bill on the prospective changes. Although the ‘Day 1’ unfair dismissal rights have been the headline grabber, there are some other key proposals that schools and MATs should be aware of:
- Unfair dismissal – day one right for employees subject to a statutory probation period (likely to be 9 months) during which time a “lighter touch” approach to dismissal can be undertaken.
- Collective redundancy – the changes will provide that:
- doubling the maximum period of the protective award which a tribunal can make where an employer is found not to have complied with their collective redundancy consultation obligations from 90 to 180 days gross pay per employee.
- collective redundancy obligations will be triggered where:
- 20 or more redundancies are proposed at one establishment (as is the case under the existing law); or
- A threshold number of employees are proposed to be made redundant across the employer’s organisation. This threshold number will be set in regulations following detailed consultation, however the change could significantly impact MATs or schools with several sites as the number of proposed redundancies across the entire organisation and not just one school.
- “Fire and rehire” – dismissals for failing to agree to a change in contract automatically unfair, except where businesses genuinely have no alternative as otherwise they will face closure, which is a high threshold to meet and unlikely to apply to schools.
- Zero hours contracts – introduction of guaranteed hours and payment for late cancellation of shifts.
- Sexual harassment – duty to take reasonable steps to prevent sexual harassment to be broadened to all reasonable steps. Complaints about sexual harassment to automatically extend whistleblower protection to the complainant, as well as Equality Act 2010 protections.
- ET time limits – to be increased from 3 months to 6 months.
- Trade unions – commitment to modernise trade union legislation making it easier for TUs to access workplaces, simplify the information required for industrial action notices and introduce protection from detriment for taking part in industrial action (currently the only protection is from dismissal).
- School support staff negotiating body – the Government intends to recognise the value of the whole school workforce by reinstating the School Support Staff Negotiating Body to enable bespoke negotiation on pay and terms and conditions, as well as advise on suitable training and career progression routes for the varied roles support staff undertake. The proposed approach is for support staff in all state-funded schools in England to benefit from a core pay and conditions offer
- Reintroduction of two-tier code on workforce matters – in 2005 the previous Labour government introduced the “Code of Practice on Workforce Matters in Public Sector Service Contracts” also known as the “two-tier Code”. The primary objective of the two-tier Code was to ensure fair and equitable employment conditions between public sector staff who had been transferred under TUPE and private sector employees working on the same outsourced public sector service contracts. The two-tier Code was withdrawn in 2010. The current Government’s Make Work Pay agenda includes a commitment to reinstate and strengthen the two-tier Code. This could has the potential to significantly affect procurement in schools including in relation to catering and cleaning contracts.
- Protections against dismissal for pregnant women, mothers on maternity leave, and mothers who return to work for a six-month period after they return to work.
The Government has published comprehensive factsheets on each proposed area of reform which summarise what the change means https://www.gov.uk/government/publications/employment-rights-bill-factsheets
When is change coming?
The Government says it will follow a phased timeline for implementation to ensure that employers, workers, trade unions and other stakeholders are given time to prepare for change. The timeline includes specific commencement dates for various measures. Common commencement dates will be used to commence the majority of regulations laid using the powers provided for in the Bill, these being 6th April and 1st October.
- Immediate changes post-Royal Assent include:
- Repealing the Strikes (Minimum Service Levels) Act 2023
- Simplifying industrial action notices and industrial action ballot notices
- Protections against dismissal for taking industrial action
- April 2026 – the more significant reforms expected to come in, including:
- Doubling the maximum period of a redundancy protective award where an employer has failed to comply with collective consultation obligations, from 90 days gross pay per affected employee to 180 days
- ‘Day 1’ paternity leave and unpaid parental leave rights
- Whistleblowing protections
- Fair Work Agency body established
- Removal of the lower earnings limit and waiting period for statutory sick pay
- Simplifying trade union recognition process
- Electronic and workplace balloting
- October 2026 – further significant measures implemented, including:
- Increase to employment tribunal time limits from 3 months to 6 months
- Ban on fire and rehire
- Reintroducing the procurement two-tier code to ensure fair and equitable employment conditions between public sector staff who had been transferred under TUPE and private sector employees working on the same outsourced public sector service contracts.
- Strengthening trade unions’ right of access
- Requiring employers to take “all reasonable steps” to prevent sexual harassment of their employees (as opposed to the current requirement to take “reasonable steps”)
- Introducing an obligation on employers not to permit the harassment of their employees by third parties
- New rights and protections for trade union reps
- 2027 final measures to be implemented, including:
- ‘Day 1’ right protection from unfair dismissal
- Changes to the collective consultation threshold
- Bereavement leave
- Ending the exploitative use of Zero Hours Contracts
- Gender pay gap and menopause action plans (introduced on a voluntary basis in April 2026)
- Introducing a power to enable regulations to specify steps that are to be regarded as “reasonable”, to determine whether an employer has taken all reasonable steps to prevent sexual harassment
- Regulation of umbrella companies
How will Government support employers?
The Government has said that it will make available various support measures including through ongoing consultation, the issuing of guidance and the provision of support including through Acas.
What do Schools and MATs need to do next?
Don’t panic! It is important for schools and MATs as employers to understand the incoming changes and what they mean for your organisation, so that you can prepare in good time. There is no doubt that further guidance as well as secondary legislation / regulations will be required for some of the proposals to be implemented. However some of the anticipated changes are expected to be in force either immediately following Royal Assent or in April 2026, which leaves schools and MATs with essentially one term in which to take steps to prepare. It is therefore important to seek timely advice from specialist education lawyers so that you are legally compliant with the new law and well equipped to deal with any challenge.
We will continue to keep our schools clients updated as to the progress of the Bill.
If you have any questions about the Employment Rights Bill and what this means for your school or MAT, or you require any advice or assistance with a schools HR or employment law matter, please contact our dedicated Schools HR helpdesk on 0345 026 8690 or schoolshr@wslaw.co.uk.
Court of Appeal Ruling on Whistleblowing in Sullivan v Isle of Wight Council – What Schools Need to Know
Key Legal framework: Whistleblowing under Employment Rights Act 1996 (‘ERA 1996’)
Whistleblowing is when a worker makes a disclosure or provides information to their employers or other prescribed bodies relating to any wrongdoing in the workplace that affects others. This is also referred to as the employee making a protected disclosure or “blowing the whistle”.
The disclosure must relate to certain types of wrongdoing that the worker reasonably believes has taken, is taking or is likely to take place as follows:
- a criminal offence
- breach of any legal obligation by an organisation
- a miscarriage of justice
- someone’s health and safety being in danger
- damage to the environment
- concealment of any of the above wrongdoing
The worker must reasonably believe that the wrongdoing is taking, has taken or is likely to take place, and that the disclosure is in the public interest.
The Employment Rights Act 1996 (‘ERA 1996’) protects whistleblowers from detriment and dismissal because they made a protected disclosure. Protection from detriment for blowing the whistle extends to all workers. In the case of the NHS only, it also extends to job applicants.
Case overview
Ms Sullivan applied for two different positions at the Isle of Wight Council (the ‘Council’) and attended interviews in October and December 2019. She was unsuccessful for both roles. In January 2020, Ms Sullivan filed an online crime report, alleging she was subjected to verbal assault and specifically that she was referred to as mentally insane during the interview process. She further alleged that a charitable trust was registered as a dormant company which had been taking revenue from visitors and that the manager who took part in both interview panels for the Council was a trustee of that charity.
Ms Sullivan also contacted the Council’s confidential safeguarding helpline, the Council’s Chief Executive, the Care Quality Commission and her MP in relation to such allegations. The Council conducted an investigation under its internal procedures. The investigation found no evidence of wrongdoing from Council staff, and Ms Sullivan’s complaint was not upheld. Ordinarily there was a right of appeal under the Council’s complaints procedure, but in the case of Ms Sullivan’s complaint the Council concluded this was not appropriate due to the extent of the investigation and the impact on the staff involved.
Ms Sullivan asserted that her letter to her MP which included an allegation that the manager who allegedly sat on the charitable trust, committed fraud and/or breached his legal obligations due to the alleged financial irregularities in the operation of the trust, amounted to a protected disclosure.
Employment Tribunal decision: Claim dismissed
Ms Sullivan issued an Employment Tribunal claim against the Council on the basis that the refusal of a right of appeal amounted to a detriment because she made a protected disclosure. Ms Sullivan further alleged that the protected disclosures were the reason her job application was unsuccessful.
Before the claim could progress the tribunal needed to decide whether Ms Sullivan had the necessary status to qualify for whistleblowing protection noting that she was neither a worker or an NHS job applicant.
Ms Sullivan asserted that the ERA 1996 was incompatible with Article 10 ECHR (the right to freedom of expression) and Article 14 ECHR (the prohibition of discrimination). Ms Sullivan attempted to rely on the case of Gilham v Ministry of Justice [2019] where the Supreme Court established that Article 10 and 14 ECHR extended whistleblower protection to a District Judge who was an officer holder rather than a worker.
The tribunal concluded that Ms Sullivan’s job applicant status was not comparable to that of an existing worker or employee and that she was not entitled to whistleblowing protection under the ECHR. The tribunal was also not satisfied that a job applicant consisted of some other status in accordance with Article 14 ECHR.
Employment Appeal Tribunal ‘EAT’ decision: Appeal dismissed
Ms Sullivan appealed to EAT on the basis that an external job applicant was comparable to workers and/or NHS job applicants.
The EAT dismissed the appeal and upheld the tribunal’s decision, making the following findings:
- Ms Sullivan was not in a materially analogous position to a worker or an applicant for an NHS position. It was also established that being a job applicant was not a status for the purposes of Article 14 ECHR.
- Ms Sullivan’s status when applying for the financial role with the Council was not analogous to NHS job applicants who have extended whistleblowing protection for the purposes of patient safety considerations.
- The appeal failed for a different reason as the complaint did not address any alleged detriment suffered in relation to being a job applicant. Instead, the complaint concerned alleged financial irregularities as a charity unrelated to the Council.
Court of Appeal (‘CoA’) decision: Appeal dismissed
Ms Sullivan appealed to the CoA.
Ms Sullivan argued that the interpretation of the ERA 1996 was not compatible with Article 14 ECHR read with Article 10 ECHR because it does not protect external job applicants unless one applies for a position at the NHS.
Even though the CoA considered that external applicants are somewhat capable of being considered as “other status” with the meaning of Article 14 ECHR, the court held Ms Sullivan was not in a materially analogous or similar position with the two groups she sought to compare herself to. It is important to note that for those who work in the NHS, whistleblowing was extended to cover this category due to the urgent concerns to safeguard patient safety and ensure those who disclosed information relevant to any issues within the NHS, were not disadvantaged in the NHS recruitment process. Therefore, Ms Sullivan could not compare herself to an NHS job applicant as this does not apply to job applicants in other sectors.
The CoA further held that the EAT made the correct decision in that the alleged detriment did not relate to Ms Sullivan’s job application. Ms Sullivan’s claim was that she suffered a detriment as she was unable to take her complaint further because of a protected disclosure she made about alleged financial irregularities at a charitable trust. It is noted her complaint was actually made as a member of the public rather than a claim of being subjected to a detriment as a job applicant or in any way connected with ‘supposed’ employment with the Council.
Key takeaways
This case highlights that cases dealing with protected disclosures are case specific and should therefore be assessed on a case-by-case basis.
Employers in the education sector should be aware that the CoA’s decision emphasises the importance that job applicants do not have the same protection as workers or NHS job applicants under the ERA 1996. In comparison to the law on discrimination, it is noted that job applicants are in fact protected against discrimination under the Equality Act 2010. If Ms Sullivan argued discrimination instead of whistleblowing as a reason for the Council’s refusal to appeal under the complaints procedure, it is possible the situation could have been different.
This case also indicates that there is a clear gap in current whistleblowing protections. Protect, the UK’s leading whistleblowing charity, was an intervener in the CoA appeal and maintains the position that job applicants should have the same whistleblowing protections as workers and NHS jobs applicants. Protect’s Chief Executive, Elizabeth Gardiner explained that she was disappointed with the outcome and that job applicants who blew the whistle in a former role will have no remedy if a new employer refuses their application because they raised concerns in the past. Ms Gardiner notes that Parliament has the opportunity to extend the whistleblowing protections to job applicants in the Employment Rights Bill. At this stage, the Employment Rights Bill does not provide such extensions but there could be calls to the government to do so.
For advice on any of the issues discussed in this case update, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690
EAT ruling in MacLennan v British Psychological Society [2024] EAT 166 potentially extends whistleblowing protections to charity trustees– What Schools Need to Know
Whistleblowing protection ordinarily only extends to workers. In the NHS it also extends to job applicants. The usual definition of worker is extended in relation to the whistleblowing detriment provisions in the Employment Rights Act 1996 (“ERA 1996”) to include a number of individuals who would not ordinarily be covered such as, for example, police officers, agency workers and self-employed NHS doctors. Office holders are not treated as workers even under this extended definition under ERA 1996.
However, in the case of Gilham v Ministry of Justice [2019] UKSC 44 the Supreme Court held that a district judge, who was not a worker, was entitled to whistleblower protection pursuant to the European Convention on Human Rights (“ECHR”), thereby extending protection to judicial office holders. More recently in the case of MacLennan v British Psychological Society [2024] EAT 166, where both Protect, the UK’s leading whistleblowing charity, and the Charity Commission were interveners, the Employment Appeal Tribunal (“EAT”) has explored the possibility of protection being further extended to charity trustees.
The case could have significant implications for schools and multi academy trusts as it may mean that governors and trustees, who are not workers but unpaid volunteers, may be protected if they report wrongdoing.
Background
Dr Nigel MacLennan, a psychologist, was a charity trustee who was elected to the role of President-Elect of the British Psychological Society (“the Society”). Dr MacLennan had concerns about how the Society was run and as a result he campaigned to become President-Elect in 2020 to address these concerns.
Shortly after stepping into his role as President-Elect, he made a number of disclosures about the alleged mismanagement of the Society. An independent investigation was conducted by a Barrister into these concerns. In the meantime, the relationship between the Society and Dr MacLennan had broken down to the extent that he was expelled from membership of the Society. This also served to terminate his role as Trustee and President-Elect. Dr McLennan brought an employment tribunal claim claiming he had been subjected to detriment for blowing the whistle.
Employment Tribunal (“ET”): Claim dismissed
The preliminary issue for the ET to determine before the claim could proceed was whether Dr MacLennan was a worker or ought to have been treated like one to be protected as a whistleblower. The ET ruled that Dr MacLennan was neither a worker nor in a situation analogous to a worker. The ET concluded that it had no jurisdiction to hear his claim.
Employment Appeal Tribunal (“EAT”): Appeal succeeds
Dr MacLennan appealed to the EAT.
The EAT upheld the grounds of appeal based on Articles 10 and 14 of the ECHR (per Gilham), finding that the employment tribunal had erred in holding that Dr MacLennan was precluded from bringing the detriment claim. The EAT found that although the ET had considered the guidance set out in Gilham, it focused almost entirely on the lack of remuneration and the linked fact that Dr MacLennan was a volunteer to conclude that he did not qualify for protection. In considering whether there were analogous circumstances with employees and workers, the relevant factors were likely also to include:
- The type of role undertaken and level of responsibility.
- The duties of the role.
- The likelihood that the person would become aware of wrongdoing.
- The importance of the person making disclosures of wrongdoing in the public interest.
- The vulnerability of the person to retaliation for making a protected disclosure, including the extent to which livelihood or reputation might be at risk.
- The availability of alternative routes to making disclosures of wrongdoing and any alternative protections.
- Any other relevant distinction between the office holder and an employee or worker.
- Whether there was a reasonable justification for excluding someone in Dr MacLennan’s position from the protection enjoyed by other workers and employees.
The EAT found that there was a strong argument that being a charity trustee was akin to an occupational status and remitted the matter back to the ET for further consideration. The Secretary of State has been invited to intervene in the remitted proceedings as a matter of public policy. .
Key Takeaways
This is another case that demonstrates that simply because someone is not obviously a worker or employee, it does not automatically follow that they are not covered by whistleblowing protections. Cases are fact specific and will be assessed on a case-by-case basis.
Charities, schools and multi academy trusts should be aware that the EAT’s decision highlights that whistleblowing protections can in some circumstances extend to office holders including governors and trustees. There are a number of public policy reasons why extending such protection is necessary. Elizabeth Gardiner, Chief Executive of Protect, notes that charity trustees play an important role in detecting and deterring any wrongdoings such as fraud, safeguarding issues and mismanagement, emphasising that this ruling will give more trustees the confidence and legal protection to call out any wrongdoing when they see it.
Ms Gardiner stresses the importance that legislation on whistleblowing protections should be updated to extend to those who currently sit outside of it. See for example our case briefing on Sullivan v Isle of Wight Council where the Court of Appeal concerning job applicants.
Charities, schools and trustees should be alert to any wrongdoing reported by governors, trustees, volunteers or anyone else who is not a worker or employee. They should have adequate policies and procedures for dealing with such concerns. Any allegation of wrongdoing should be properly investigated. Where allegations are raised by a trustee or governor this will often mean commissioning an independent investigation by an external third party. It is important that any such process is properly informed and managed as there are a number of complexities involved in investigations not least confidentiality, data protection, safeguarding and legal professional privilege.
For advice on any of the issues discussed in this case update, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690.
For assistance with an independent investigation please contact our dedicated Schools Investigations team on schoolsinvestigations@wslaw.co.uk.
High Court ruling on Professional Conduct in R (Leger) v Secretary of State for Education – What Schools Need to Know
Key Legal framework: Religion and Belief under Equality Act 2010 (“EqA 2010”), The Education Act 2002 (“EA 2002”) and The Teachers’ Disciplinary (England) Regulations 2012 (‘the Regulations’)
Under the EqA 2010, it is unlawful to treat someone less favourably because of a protected characteristic. Religion and belief is one of the nine protected characteristics, Protection from unlawful discrimination in an employment context applies to almost everyone working in a school, including employees, workers, peripatetic teachers and self-employed contractors. It also applies to job applicants. However, where a member of staff expresses religious or philosophical beliefs that are considered to be objectionable or inappropriate, disciplinary action in such cases can sometimes be necessary and justified.
The EA 2002 governs the duties of the Secretary of State in relation to educational needs. The Act underpins the Teaching Regulation Agency (TRA) which regulates the teaching profession. The Regulations sets out the process for investigating and disciplining teachers in misconduct cases.
Case overview
Ms Leger, was a teacher at Bishop Justus Church of England School. She was described by the court as a born-again “conservative” Roman Catholic Christian, She considered her faith to be a “mainstream form of Christianity which affirms the truthfulness of the Bible”.
In her witness statement to the court, Ms Leger described aspects of teaching at the school which she considered were not Christian, and in particular this included LGBTQ+ relationships and ideology, and abortion. However, as a teacher at the school, Ms Leger was expected to share LGBTQ+ material with her pupils as a part of the curriculum in PHSE and Religious Studies (‘RS’) lessons. She had shown her classes some LGBTQ+ material but said that she found it distressing, misleading, and contrary to her beliefs, and so stopped doing so.
On 8 February 2022, Ms Leger was asked to teach an RS lesson to her Year 7 students, which included a segment on LGBTQ+ topics and protected characteristics. On that occasion however, Ms Leger explained her Christian beliefs to the class, and explained why her LGBTQ+ ideology was contrary to those beliefs, and fielded questions from pupils on these issues.
One pupil expressed concerns over Ms Leger’s conduct. The pupil informed her parents that Ms Leger was “transphobic in class and [talking about] how trans people are not in the right mindset and later in life come to know they are wrong and will know their original gender”.
The pupil’s mother complained to the school, and as a result disciplinary proceedings were instigated, and the matter was referred to the TRA. Ms Leger was suspended from work in March 2022 and dismissed in May 2022.
In 2023, Ms Leger appeared before a TRA Professional Conduct Panel (‘PCP’) in which the panel found that a number of allegations were proved and found Ms Leger’s behaviour to be unacceptable professional conduct. The panel did not however find that Ms Leger’s conduct brought the profession into disrepute and therefore did not make a recommendation to the Secretary of State to issue a prohibition order. However the PCP did make a recommendation that the finding of misconduct should be published. The Secretary of State for Education agreed with the panel’s recommendations.
The Court’s findings: Claim dismissed
In May 2024, Ms Leger applied for Judicial Review on the basis that:
- The PCP failed to consider the context of her comments;
- The decision made by the PCP was unfair and breached Article 6 of the European Convention of Human Rights (‘ECHR’), the right to a fair trial;
- The PCP misdirected itself that Ms Leger had a duty to provide a broad and balanced curriculum, and this duty only applied to schools and not the individual; and
- The PCP infringed her rights under Article 8 ECHR, the right to private and family life, as well as Article 9 ECHR, the freedom of thought, conscience and religion and Article 10 ECHR, right to freedom of expression.
The High Court dismissed all of Ms Leger’s claims for the following key reasons:
- The context of Ms Leger’s comments was considered by the PCP – this included consideration of her Christian beliefs and her comments that were made in the context of a discussion regarding LGBTQ+ rights in a year 7 RS lesson in a Church of England school.
- The PCP hearing was not procedurally unfair or in breach of Article 6 ECHR
- The PCP was entitled to conclude that Ms Leger’s refusal to teach the segment of LGBTQ+ material from the curriculum because of her religious objections breached the school’s RS policy – although the statutory duty to have a broad and balanced curriculum does rest on schools rather than the individual teachers, it is the individual teachers who delivers the curriculum to pupils, and generally those teachers should be expected to deliver that curriculum in accordance with school policy.
- The decision was not in breach of Articles 9 and 10 ECHR
- The PCP’s and Secretary of State for Education’s decision was lawful – the decision was a “justifiable and proportionate sanction for her unacceptable professional conduct”, and there was no breach of Article 8 ECHR.
Key takeaways
The outcome of this case highlights the challenges schools or MATs, and in particular faith schools and MATs with any religious affiliation, may face.
The Court’s decision highlights the importance of having a clear Religious Studies policy, and the extent of the obligation to provide a broad and balanced curriculum. This is an obligation that extends not just to the school, but also, to some extent, to the teachers who deliver the curriculum.
However, schools and MATs should be careful not to think that just because a teacher’s expression of their religious or philosophical beliefs conflicts with that obligation, that will justify dismissal in all circumstances. Although in the present case the fairness of the dismissal was not an issue before the court, recent case law has considered the extent of an employer’s right to interfere with a worker’s expression of belief. See for example our case briefing on Higgs v Farmor’s School where the dismissal of Mrs Higgs was found to be both discriminatory and unfair because of her religion and belief. Schools and MATs should therefore proceed with great caution and take legal advice before taking any decision on disciplinary action or dismissal where it concerns an employee’s expression of their religious or philosophical belief.
For advice on any of the issues discussed in this case update, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690.
External HR consultants not liable as agents of employer in a whistleblowing claim
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.