Independent Investigators and Whistleblowing Dismissals – Drawing the Legal Line

When a business needs to navigate a complex disciplinary or grievance matter, particularly involving senior staff, it is often wise to bring in independent HR consultants or investigators. Their objectivity and expertise can be crucial in ensuring a fair and professional process. But what happens if a whistleblowing dismissal follows their report? Could they be held personally liable?

The recent case of Handa v The Station Hotel and Others provides a reassuring answer.

The Facts 

In this case, two external consultants, Mr Duncan and Ms McDougall, were brought in to investigate grievances and potential misconduct involving the Claimant. Mr Duncan substantiated parts of a grievance, and Ms McDougall later produced a disciplinary report suggesting dismissal for gross misconduct. The employer relied on that report when deciding to dismiss the Claimant, who then brought claims of automatic unfair dismissal and whistleblowing detriment against both the employer and the consultants. The tribunal struck out the claims against the consultants and the employee appealed. 

The EAT’s Ruling

The Employment Appeal Tribunal upheld the decision and rejected the claims against the consultants. While it acknowledged that consultants theoretically could be agents of the employer there were no reasonable prospects of this argument succeeding in this case and furthermore, they would only be liable if their actions directly caused the dismissal. In this instance, the employer alone made the decision to dismiss.

The key takeaways:

• Independent consultants are not liable unless they are directly involved in the dismissal decision.
• Influence alone does not create legal liability.
• The claims were struck out as having no reasonable chance of success.

Practical Advice for Employers 

This judgment offers clarity, however, it also highlights the importance of clear contractual arrangements when engaging external support:

• Define roles and responsibilities explicitly.
• Make it clear that dismissal decisions rest solely with the employer.
• Consider indemnity clauses to protect consultants from future claims.

Independent investigators remain a valuable resource – but the lines of authority and liability must be carefully drawn.

If your organisation is navigating complex employee issues and needs expert legal support, we’re here to help. If we can help, we will. Contact our team for advice.