Can HR consultants be responsible for an employer’s decision to dismiss?

The Employment Appeal Tribunal (EAT) has recently considered whether independent HR consultants, engaged by an employer to investigate grievances and conduct a disciplinary hearing, were acting as the employer’s ‘agent’ and therefore liable for the decision to dismiss. 

Handa v Station Hotel (Newcastle) Ltd and others [2025] EAT 62 

Facts of the case 

The claimant was a director of a holding company of a group of hotels. He raised several allegations of financial impropriety relating to the business, which he argued were protected disclosures. He subsequently faced allegations of bullying and harassment by members of staff who raised grievances against him. An HR consultant was engaged to investigate the grievances, and a separate HR consultant was engaged to conduct the subsequent disciplinary hearing. A draft report was provided to the company’s solicitors, and the final version included a statement that in the consultant’s opinion, the company would be justified in dismissing the claimant. The claimant was summarily dismissed, with an external solicitor appointed to hear his appeal (which was dismissed). 

The claimant brought claims for ordinary unfair dismissal as well as automatically unfair dismissal on the grounds he had made protected disclosures. He issued the claims against his employer as well as the two independent HR consultants. He claimed that the consultants were the company’s ‘agents’ (acting on its behalf) and therefore jointly liable for the dismissal. 

The employment tribunal struck out the claimant’s claims against the HR consultants on the basis they had no reasonable prospects of success. The claimant appealed to the EAT. 

EAT decision 

The EAT dismissed the claimant’s appeal. 

The EAT accepted that it was arguable that the HR consultants could be acting as the employer’s agents. The fact that a person conducting a grievance or disciplinary investigation was an external appointee, and carried out their duties independently, would not preclude them from being regarded as the employer’s agent while carrying out their remit.  

However, the EAT agreed with the tribunal’s conclusion that there was no basis on which the HR consultants could be held liable for the claimant’s dismissal. Just because the employer had relied on the investigations carried out by the HR consultants in support of the decision to dismiss, it did not provide grounds for imposing liability on them for the dismissal decision.  

The Birketts view 

This is a helpful decision to clarify that an external consultant will not be jointly liable for decisions made by an employer, even if the decision is based on investigations carried out and reports produced by the consultant. Note, however, that liability may still arise in relation to a consultant’s conduct in the course of carrying out their functions if, for example, they have acted in a discriminatory way. 

In this case, the HR consultants could show evidence that the decision to dismiss the claimant was not taken by them and it was not within their respective remits (even though one of them had expressed an opinion on the appropriate outcome). It is reminder of the importance for external consultants carrying out investigations to expressly limit their remit to establishing the facts, rather than reaching a conclusion on the outcome of either a grievance or a disciplinary process. This is also consistent with the Acas Code of Practice, which recommends that different people should carry out the investigation and conduct any subsequent disciplinary hearing.