Neeraj Handa v The Station Hotel (Newcastle) Limited & Ors

The Employment Appeal Tribunal considered an appeal against a tribunal decision to strike out whistleblowing (protected disclosure) detriment complaints brought against two external HR consultants (the fourth and fifth respondents) on the basis that those complaints had no reasonable prospect of success. The tribunal had treated the consultants as contractors rather than agents for the purposes of section 47B Employment Rights Act 1996 and concluded there was no arguable basis to hold them liable as agents for the dismissal complained of.

The EAT held that the tribunal erred to the extent that it treated the fact of a contract for services as conclusively precluding an agency relationship in respect of the consultants' investigative and disciplinary remits: an external investigator retained to carry out employment-related procedures can, in principle, be an agent when acting within that remit. The EAT nevertheless dismissed the appeal because the claimant had not advanced any arguable doctrinal basis for holding either consultant liable as the employer's agent for the separate act of dismissal itself, nor pleaded detrimental treatment by the consultants in relation to the conduct or contents of their processes. Section 47B ERA 1996 and common law agency principles were central to the decision.

Background and parties: The claimant, an employee and director of the first respondent, alleged that after making protected disclosures he was the subject of grievances, investigation by an external HR consultant (R4), disciplinary proceedings conducted by another external HR consultant (R5), suspension, removal as director and summary dismissal. The claimant brought tribunal claims against the first respondent for unfair dismissal (ordinary and by reason of protected disclosures) and against respondents 2–5 for detrimental treatment for having made protected disclosures, relying on section 47B Employment Rights Act 1996 as to agent liability.

Procedural posture: At a preliminary hearing the Employment Tribunal (EJ Moss) struck out the complaints against R4 and R5 as having no reasonable prospect of success. The claimant appealed that strike-out to the EAT. There was also a contingent cross-appeal by R4.

Nature of the claim / relief sought: The claimant sought to proceed with whistleblowing detriment complaints against the fourth and fifth respondents. Relief sought at the PH was continuation of those claims (i.e. resisting strike-out) and, ultimately, a finding of liability if the case proceeded to final hearing.

Issues for determination:

• Whether the tribunal was wrong to conclude that R4 and R5 had no reasonable prospect of establishing they were agents of the first respondent for the purposes of section 47B ERA 1996.
• Whether, even if arguable that they were agents for the performance of their investigative/disciplinary remits, there was an arguable basis for treating them as agents responsible for the dismissal itself.
• Whether the tribunal misapplied the law on agency (common law and statutory), failed to take the claimant’s case at its highest, or improperly resolved contested factual issues at the preliminary hearing.

Court’s reasoning: The EAT reviewed the common law concept of agency (drawing on Bowstead & Reynolds and authorities including Ministry of Defence v Kemeh, Hoppe v HMRC and others) and the statutory provisions which import agency into discrimination/whistleblowing claims (notably section 109 Equality Act 2010 and section 47B ERA 1996). The EAT accepted that the Employment Tribunal was wrong to treat the mere fact that R4 and R5 were engaged under contracts for services as necessarily precluding agency in respect of their investigative and disciplinary remits: where an external appointee is retained to carry out employment-related procedures, they can in principle act as agent when performing that remit.

However, the EAT rejected the claimant’s primary contention that those respondents could be held as agents for the subsequent dismissal. The claimant had not pleaded, nor advanced before the tribunal, an arguable doctrinal route by which reports or investigative acts by those consultants, even if causally linked to the employer’s decision, converted them into agents responsible for the dismissal. The EAT emphasised that (i) agency liability under the statutory texts bites on acts done by an agent "in the course of" the functions they are authorised to perform; and (ii) where the consultants did not take or implement the decision to dismiss, nor was it pleaded that they had, the mere fact that the employer relied heavily on their reports was not an arguable basis for making them co-liable for the dismissal via agency. The EAT also addressed arguments about fiduciary status, collusive control, causation and whether the tribunal improperly resolved factual disputes without oral evidence; the tribunal had given appropriate consideration and had applied correct principles on strike-out and discretion.

Disposition: The EAT concluded that although the tribunal had overstated some aspects when dismissing any arguable agency in respect of the investigative/disciplinary remits, there was in any event no arguable basis to hold R4 or R5 liable as agents for the dismissal. The strike-out therefore stood and the appeal was dismissed.

Appeal dismissed. The EAT accepted that an external investigator or disciplinary chair could, in principle, be an agent when acting within an employment-related remit, but found no arguable basis on the pleaded case or evidence to hold the fourth or fifth respondents liable as agents for the dismissal itself. The tribunal’s strike-out of the complaints against those respondents was therefore not in error in outcome.

Appeal from a preliminary hearing decision of the Employment Tribunal (EJ Moss) striking out the claimant's detrimental treatment (protected disclosure) complaints against the fourth and fifth respondents. The strike-out occurred following the tribunal preliminary hearing in December 2023; this appeal was decided by the Employment Appeal Tribunal, [2025] EAT 62.