Neeraj Handa v The Station Hotel (Newcastle) Limited & Ors [2025] EAT 62

[2025] EAT 62

Case No EA-2024-000198-AS

EMPLOYMENT APPEAL TRIBUNAL

Venue Rolls Building, Fetter Lane, London, EC4A 1NL

Date 2 May 2025

Before

HIS HONOUR JUDGE AUERBACH

Between

NEERAJ HANDAAppellant

THE STATION HOTEL (NEWCASTLE) LIMITED (1)Respondent

ARAN HANDA (2)Respondent

PAUL WILLIAMSON (3)Respondent

STEVEN DUNCAN (4)Respondent

HELEN MCDOUGALL (5)Respondent

Richard O’Dair (instructed by Saltworks Law Ltd) for Appellant

Thomas Cordrey (instructed by Baker & McKenzie LLP) for First, Second and Third Respondents

Claire Millns (instructed by Markel Law LLP) for Fourth Respondent

Colm Kelly (instructed by DAC Beachcroft LLP) for Fifth Respondent

Hearing Hearing date: 2 April 2025

JUDGMENT

[1]This matter is ongoing in the Newcastle employment tribunal. I will refer to the parties as they are in the tribunal. At a preliminary hearing in December 2023 EJ Moss struck out the claimant’s complaints of detrimental treatment on the grounds of protected disclosures against the fourth and fifth respondents as having no reasonable prospect of success. This is the claimant’s appeal from that decision. There is also a contingent cross-appeal by the fourth respondent.

[2]A brief overview of the relevant factual background is this. I stress, in providing this, that the full hearing of the claim has yet to take place, and factual disputes have yet to be resolved. However, some matters of factual context are not in dispute, and will assist the reader’s understanding.

[3]The first respondent is the holding company of a group of companies in the hotels business. It is a family business in which members of successive generations are, or have been, involved in one capacity or another. The claimant was an employee, and, from around May 2022, a director, of the first respondent. The second respondent, who is the claimant’s uncle, is a director and shareholder. The third respondent is a non-executive director and board chair.

[4]Following his appointment as a director the claimant made a number of allegations of financial impropriety relating to the running of the business. These allegations were, and are, disputed. The claimant claims that the raising of them amounted to protected disclosures. Subsequently, in point of time, a number of members of staff raised grievances against the claimant, making allegations of bullying and harassment. There is a dispute as to whether the raising of these grievances was connected to the claimant having made his allegations, and, if so, in what way.

[5]The first respondent asked solicitors, Square One Law, to manage the grievance process. The fourth respondent has his own HR consultancy company. In January 2023 he was retained to investigate the grievances. He met each of the complainants and then the claimant. He found two of the grievances to be substantiated and recommended that those matters proceed to a disciplinary hearing. The tribunal stated that his report made it clear that this was only a recommendation.

[6]The fifth respondent runs an HR consultancy. She was retained by the first respondent to conduct a disciplinary hearing. That took place on 3 April 2023. She sent a draft report to Mr van Zyl, a partner at Square One Law, on 11 April 2023. Following a response from him, she sent an amended final version which included a statement to the effect that the first respondent would be justified in dismissing the claimant for gross misconduct.

[7]Meantime, on 6 April 2023, the claimant was suspended. On 13 April 2023 notice was sent to Companies House removing the claimant as a director. There are disputes before the tribunal about the reasons why each of these things happened.

[8]On 17 April 2023 the claimant was dismissed with immediate effect for the given reason of conduct. The claimant appealed. Warren Wayne, an external solicitor, was appointed to hear the appeal. Following a hearing and report from him the appeal was dismissed.

[9]In July 2023 solicitors for the claimant presented his tribunal claim. Against the first respondent he complained of unfair dismissal, both ordinary and for the reason or principal reason of having made protected disclosures (whistleblowing). Against the second to fifth respondents he complained of detrimental treatment on the grounds of whistleblowing. The detrimental treatment was identified as(a) the suspension;

(b) the filings terminating his directorship; and

The Employment Tribunal’s Decision

[10]The tribunal noted at [2] that the hearing had been listed to determine whether the claims against the fourth and/or fifth respondents should be struck out as having no reasonable prospect of success or made the subject of deposit orders. It noted at [3] that it had witness statements from the claimant and the third, fourth and fifth respondents, all of whom were sworn and confirmed that their statements were true; but no further evidence was heard.

[11]The tribunal identified at [4] that, as against the fourth and fifth respondents, reliance was placed upon section 47B(1A)(b) Employment Rights Act 1996, on the basis that they were acting as agents of the first respondent; and that this provision protects workers against “being subjected to any detriment by any act, or any deliberate failure to act, done by an agent of the worker’s employer with the employer’s authority, on the ground that the worker has made a protected disclosure.”

[12]The tribunal stated at [5] that the claimant claimed to have made protected disclosures and:

“was subjected to the following detriments as a result; • being suspended by the First Respondent on 6 April 2023; • being removed as a director of the First Respondent by way of notice to Companies House on 13 April 2023; • Being dismissed on 17 April 2023.”

[13]At [6] the tribunal said this:

“The issues pertaining to the strike out/deposit order applications concern primarily whether Mr Duncan and/or Ms McDougall could be said to be acting as agents of SHNL (R1). A secondary issue relates to whether they could be said to have subjected the claimant to any of the detriments relied upon.”

[14]At [7] the tribunal said; “The hearing proceeded on the basis of submissions, but it may be helpful at this stage for key elements of the undisputed facts to be set out as background information for context.”

[15]Over the next few paragraphs, the tribunal then set out a number of such factual matters, covering similar ground to that which I have covered, but in more detail. In its self-direction as to the law, the tribunal referred to its powers under the rules to make strike-out and deposit orders, and familiar and pertinent authorities relating to both. There followed a section in which the tribunal described in some detail the main submissions made by each of the four counsel. In the next section the tribunal set out its conclusions, which I will reproduce in full. “50. I reminded myself that striking out a whistleblowing claim is an exceptional course to take and one which should only be taken in the clearest of circumstances. While not conducting a mini trial, I had to undertake a reasonable analysis from the undisputed facts of the claimant’s likelihood of success in establishing that the fourth and/or fifth respondents were agents of the first respondent. 51. The claims against R4 and R5 rest on undisputed events, from which the claimant seeks to have inferences drawn that an agency relationship existed between R1 and R4 and between R1 and R5. Any disputed facts relating to the reasons behind the claimant’s conduct from which the grievances arose would be wholly irrelevant to their standing in the proceedings. The claimant’s criticisms about their competence in handling the grievance investigation and disciplinary hearing may be relevant to the question of procedural unfairness and could potentially strengthen the unfair dismissal claim against the employer, but it could not convert a contract for services into an agency relationship, so as to render R4 and R5 liable for whistleblowing detriment in their own right. 52. There being no statutory definition of agency, recourse must be had to the common law approach to the legal concept of agency, as evolved through caselaw. In the case of Ministry of Defence v Kemeh, a distinction was drawn between the situation of somebody contracted to provide a service and an agent authorised to act on behalf of the principal, with the Court of Appeal stating that it would be inappropriate for someone employed by a contractor to perform work for the benefit of a third party employer to be described as an agent. In applying the concept of agency, there needed to be a recognition of the need for the agent to be authorised to act on behalf of the principal as opposed to simply working for its benefit. 53. In the subsequent case of Hoppe v HMRC, the approach taken in Kemeh was applied to the protected disclosure detriment provisions. It was stated in that case by the Employment Appeal Tribunal that it is not essential for the putative agent to have the power to affect the putative principal’s relationships with third parties, but nor is it sufficient for the putative agent to be providing services to the putative principal under a contract with it and that the principal must be the source of the authority under which the agent acts. 54. Taken together, the caselaw, at times drawing on guidance from Bowstead and Reynolds on Agency, establishes that the concept of agency requires there to be a fiduciary relationship in existence between the parties, whether that includes the ability of the agent to bind the principal in relation to third parties or consists of the agent acting under the authority of the principal without necessarily having such ability. A merely functional relationship is insufficient, whereby something that is necessary to be done for the putative principal, and that could otherwise be done by itself, is done by the putative agent under some arrangement. A consistent feature throughout is that something over and above the mere provision of services under a contract would be required. 55. That being the case, if R4 and/or R5 were found to be contractors carrying out functions for the benefit of R1 under a contract for services, being functions which R1 would otherwise need to do for itself, that would not amount to an agency relationship. Conversely, if they were found to be exercising their functions by virtue of authority conferred on them by R1, an agency relationship would have been created. 56. There is incontrovertible evidence within the bundle that R5 was operating under a contract for services. She drew up a proposal for the supply of services to R1, establishing the boundaries pertaining to her role. Although there were no written terms of engagement as far as R4 was concerned, he was engaged by R1 in a similar manner, for a similar purpose of undertaking a specific HR function in accordance with the services he regularly provided through his business. This was consistent with him acting for the benefit of R1 rather than on behalf of it or under its authority. The fact R4 failed to uphold a number of grievances is supportive of his independence and the freedom with which he exercised his functions. This could only go against the claimant in terms of having any inference of collusion drawn. There isn’t any evidence to suggest R5 deviated from the proposal she made at the outset about the scope of her role. I would point out here that Mr O’Dair misrepresented the facts when he said Ms McDougall recommended the claimant be dismissed. It is clear from her report that she provided an opinion such action would be justified but she did not recommend it as a sanction. Both R4 and R5 made recommendations at the conclusion of their investigations that the first respondent was at liberty to accept or reject. 57. I considered Mr O’Dair’s arguments on behalf of the claimant to be irrational or erroneous at times. In his skeleton argument he purported to cover the law on joint enterprise. Joint enterprise is widely recognised as being a doctrine of criminal law whereby participants may be held liable for the acts of the principal offender, as well as for their own direct actions. It has no place in employment law to my knowledge. He does not suggest that R4 or R5 could be rendered liable for the actions of R1 but uses the ‘joint enterprise’ argument to advance the claimant’s case that more than one person can be liable as principals. Parliament has legislated for the prospect of both a worker’s employer and the employer’s agent to each be liable for whistleblowing detriments. Liability is not dependent on them having acted in concert and I considered Mr O’Dair’s ‘joint enterprise’ argument somewhat otiose in the circumstances. 58. Mr O’Dair argued that this case could be one falling outside the classic agency case because R4 and R5 had been used to fulfil the employer’s obligations under employment law as opposed to carrying out an HR service. He expressed concern that an employer could otherwise simply outsource its HR functions and deprive an employee or worker from bringing a claim before the Employment Tribunal. Regarding the prospect of R4 and R5 falling within an extended concept of agency, although acknowledged by the Court of Appeal in Kemeh that the concept at common law is not one which can be readily encapsulated in a simple definition, consistent throughout the caselaw is an acceptance that something more than a mere contract for services is required. Mr O’Dair’s argument that those offering the type of service provided by R4 and R5 should essentially be deemed to be agents while they deliver those services would be bound to fail. It is the fiduciary nature of the relationship that creates agency as opposed to the category of work involved. As for the suggestion that, absent an agency relationship having been created, outsourcing HR functions would leave a worker or employee without redress, such fear is unfounded given there will always be the prospect of bringing a claim against the employer, although the appropriate claim in the case of an employee would be one under Section 103A of the Employment Rights Act 1996. 59. I was specifically asked by Mr O’Dair to cover in the written reasons what he described as one of his central arguments against the respondents being able to succeed on the issue of agency. He contended that their position was inconsistent with the pleaded case at paragraph 6.2 of the grounds of response. Paragraph 6.2 concerns the respondents’ pleadings relating to the unfair dismissal claim, in respect of which agency has no relevance, but Mr O’Dair in his oral submissions relied upon it to suggest the respondents were perfectly content to assume responsibility for the investigation when it suited their case. Paragraph 6.2 reads as follows: By reason of the above the SHNL Respondents will contend that Neeraj was dismissed for a fair reason, namely conduct, and that, in all the circumstances, including the investigation which it followed, SHNL acted reasonably in treating this reason as sufficient to dismiss Neeraj summarily. Prior to effecting Neeraj’s dismissal, it followed a full and fair procedure, complying in all material respects with the ACAS Code of Practice on Disciplinary and Grievances. For context, the preceding paragraph reads: SHNL had a genuine and honest belief that Neeraj was guilty of the misconduct alleged and this amounted to gross misconduct. This was a conclusion which was fair and reasonable in the circumstances and reached following a full and fair investigation with support from independent third parties. I am at a loss to understand how the contents of paragraph 6.2 might be incompatible with the respondents’ position on agency. The respondents’ assertion that it acted reasonably in all the circumstances, including the investigation which it followed, does nothing to undermine the argument that R4 and R5 were acting under a contract for services rather than as the employer’s agents. Nor is the reference in the paragraph to the employer following a full and fair procedure inconsistent with the respondents’ position on agency. A link is made at the start with the preceding paragraph and para6.1 makes it clear that support was obtained from independent third parties. 60. Taking the claimant’s case at its highest, I find this to be a hopeless case. The factual basis for concluding that R4 and/or R5 were agents of R1 is so weak that an arguable case could not be established. The claimant has no reasonable prospect of establishing that a fiduciary relationship existed with R4 or R5 acting on behalf of R1, putting R1’s interests above their own, as opposed to them acting on their own behalf providing a service to R1 for its benefit. R4 and R5 were chosen for a particular task and necessarily had to receive some instruction as to what that entailed, but thereafter they performed their roles in accordance with the services they were contracted to provide, rather than exercising their functions by virtue of any authority conferred on them by R1. It is pure speculation to suggest otherwise and a theory that is unsupported by the evidence. Cases ought not to be allowed to proceed to final hearing to enable a fishing expedition to take place in the vain hope something favourable to the claimant may be unearthed by cross examination. 61. Mindful that I retain a discretion to allow a case to proceed despite a finding that it has no reasonable prospect of success, I considered the overriding objective and my duty to deal with cases fairly and justly. I attached considerable weight to the fact R4 and R5 would be put to cost and inconvenience in having to defend what I consider to be a hopeless case. Aside from any legal costs they might incur, their businesses would inevitably suffer by their absence for a lengthy period. The claimant is not denied the opportunity of presenting his case and seeking redress given he is proceeding with his claims against R1-3 in any event. Having taken a step back and reflected on the just exercise of my discretion, I have concluded the balance lies in favour of striking out the claims against R4 and R5. 62. Although academic, had I reached a different conclusion on the agency point, I would not have moved to strike out the claims on the basis of there being no reasonable prospect of success on the subsidiary point of whether R4 and/or R5 could be said to have subjected the claimant to detriment. Nor would I have made deposit orders. If there was a genuine issue to be resolved at trial about the true nature of their roles, the procedure leading up to dismissal is so interwoven with the act of dismissal itself, that it would have been only proper to leave that for the Tribunal Panel to unpick at the final hearing. I say this for completeness given it was raised as a separate issue, though I am conscious it is somewhat artificial to isolate the issues in the circumstances of this case, given any potential liability on the part of R4 and R5 for dismissal as a detriment would be contingent on them having been found to have acted as agents of R1.” Paragraph

6.2 reads as follows: For context, the preceding paragraph reads:

The Law

[16]As to the common law concept of agency Bowstead & Reynolds on Agency (currently in its 23rd edition, published in 2024 and up to date to 31 July 2023) states at [1-001]:

“(1) Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent. Any person other than the principal and the agent may be referred to as a third party. (2) In respect of the acts to which the principal so assents, the agent is said to have authority to act; and this authority constitutes a power to affect the principal's legal relations with third parties. (3) Where the agent's authority results from a manifestation of assent that he should represent or act for the principal expressly or impliedly made by the principal to the agent himself, the authority is called actual authority, express or implied. But the agent may also have authority resulting from such a manifestation made by the principal to a third party; such authority is called apparent authority. (4) A person may have the same fiduciary relationship with a principal where he acts on behalf of that principal but has no authority to affect the principal's relations with third parties. Because of the fiduciary relationship such a person may also be called an agent.”

[17]At [1-002] the learned authors stress that this definition “is to be read as a whole. No single sentence should be treated as encapsulating the whole notion of agency.”

[18]Are any of: a fiduciary relationship, the power to affect the putative principal’s legal relationship with third parties, or control by the putative principal a necessary condition of an agency relationship? The answer is “no”. In UBS AG (London Branch) vKommunale Wasserwerke Leipzig GmbH

[2017] EWCA Civ 1567

; [2017] 2 CLC 584 Lord Briggs of Westbourne and Hamblen LJ (as he then was) in their joint speech (Gloster LJ not disagreeing with this passage) said:

“91. Lord Falconer sought to derive from the Tonto case a principle that a relationship could never be identified as one of agency if none of the main characteristics, namely authority to affect the principal’s relationships with third parties, fiduciary duty or control by the principal, was present. We would not be minded to go quite that far, but the absence of any of these main characteristics must nonetheless be a significant pointer away from the characterisation of a particular relationship as one of agency, even though there may be rare exceptions. 92. Mr Lord took us to Halton International Inc v Guernroy Limited [2005] EWHC 1968 (Ch) per Patten J at [138]-[9], and to Tigris International NV v China Southern Airlines Company Limited [2014] EWCA Civ 1649, per Clarke LJ at [155], in support of his submission that the existence of a fiduciary duty was by no means an essential characteristic of agency. We agree. There are no doubt many forms of non-fiduciary agency, just as there are forms of fiduciary agency in which the agent has no authority to affect the principal’s relations with third parties.”

[19]Is being a contractor providing services to the putative principal, which it could have performed for itself, by itself a sufficient condition of an agency relationship? The answer, again, is “no”. Bowstead at [1-004], drawing upon a number of authorities, comments:

“Equally, the mere fact that one person does something in order to benefit another, and the latter is relying on the former to do so or may have requested or even contracted for performance of the action, does not make the former the agent of the latter.”

See also the discussion in Bowstead at [1-034].

[20]The statutory provisions applicable to complaints of unlawful discrimination or detriment on the ground of having made a protected disclosure, which invoke the concept of agency, are as follows.

[21]Section 109(2) Equality Act 2010 provides:

“Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.”

Section 110 has the effect (subject to particular qualifications) that, if the thing so done contravenes that Act, then the agent and, subject to a defence, the employer, are both treated as liable for that contravention. Predecessor provisions of separate strands of discrimination legislation were to similar effect.

[22]Section 47B(1A)(b) Employment Rights Act 1996 provides that a worker (W) has the right not to be subject to any detriment by any act, or any deliberate failure to act, done “by an agent of W’s employer with the employer’s authority” on the ground that W has made a protected disclosure. Section 47B(1B) provides that where a worker is subject to a detriment by anything done in that way, that thing is treated as also done by the worker’s employer.

[23]Section 47B(2) provides that section 47B does not apply where “(a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X)”. In Timis v Osipov

[2018] EWCA Civ 2321

;

[2019] ICR 655

the Court of Appeal held that that provision did not preclude a worker who dismissed a colleague on behalf of their employer being held liable in respect of the dismissal, as detrimental treatment pursuant to section 47B(1A).

[24]I turn to consider authorities in the employment field on which reliance was placed by one or more of the parties to this appeal. I will start with some cases involving complaints by police officers. The common context is that a police officer is not an employee, but, for the purposes of discrimination legislation, is deemed to be the employee of the chief officer of their force, as section 42(1)(a) Equality Act 2010 now puts it, “in respect of any act done by” the chief officer.

[25]In Chief Constable of Cumbria v McGlennon

[2002] ICR 1156

a police officer complained that decisions taken by senior officers, regarding his posting and deployment, were acts of direct sex discrimination and victimisation. The EAT held that the chief constable was liable in respect of these decisions, as the Police Act 1996 provided that a police force shall be “under the direction and control of” the chief constable; and decisions concerning posting and deployment of an officer were essentially management decisions taken under the chief constable’s authority.

[26]Yearwood v Metropolitan Police Commissioner

[2004] ICR 1660

concerned several cases in which police officers had alleged discriminatory conduct in respect of disciplinary proceedings. At [39] – [43] the EAT held that the use of “principal” and “agent” in the discrimination legislation referred to the common law concept of agency. However, the chief officer was not liable in respect of the conduct of an investigating officer under the Police (Discipline) Regulations 1985 or the Police (Conduct) Regulations 1999, as they precluded him from acting in that role; and a person cannot be liable through an agent in respect of an act that he could not have carried out himself.

[27]A further claim considered in that case, however, concerned an incident in which an officer of Merseyside Police, Mr Husain, was supporting a civilian employee of the force at a disciplinary hearing. The tribunal found that the way he was spoken to at the start of the hearing, by the person presiding, Mr Robinson, amounted to an act of victimisation. Mr Robinson was described as the Director of Personnel and Development of Merseyside Police, although he was in fact employed by the Merseyside Police Authority. At [98] the EAT upheld the tribunal’s finding that Mr Robinson had acted as the chief constable’s agent, holding that the principles in McGlennon applied, as it was part of the chief constable’s responsibilities that managers be in place “to handle disciplinary matters relating to civilian employees.” (However, the finding of victimisation was overturned.)

[28]The claimant in Metropolitan Police Commissioner v Weeks,

UKEAT/0130/11

, 22 November 2011 was a civilian employee of the Metropolitan Police who was line managed by DS Thomas, an officer of the City of London Police. He determined matters such as her appraisals, hours, and pay level. The EAT upheld the tribunal judge’s conclusion that these were important employment decisions affecting the employment relationship, which DS Thomas had the consent of the claimant’s employer to take, and which decisions bound her employer.

[29]In Ministry of Defence v Kemeh

[2014] EWCA Civ 91

;

[2014] ICR 625

the MoD contracted with Serco, which sub-contracted with Sodexho, for the provision of catering services. The claimant, an army cook, was racially abused by an employee of Sodexho, Ms Ausher, when they were both working in the same mess. The issue was whether her conduct was, for the purposes of his race discrimination claim, done as agent for the MoD with its authority, under section 32 Race Relations Act 1976 (a predecessor of section 109 of the 2010 Act). At [11] Elias LJ said:

“Read literally, subsection (2) might suggest that the principal must authorise the act of discrimination itself before liability arises. But I agree with the Employment Appeal Tribunal in Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501, para 32 (Mr Recorder Langstaff QC presiding) that this would virtually render the provision a dead letter. In my judgment, Parliament must have intended that the principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do. It is a moot point whether the common law would in any event impose liability in these circumstances.”

[30]There was a difference between the parties in that case as to whether, in this context, it is necessary that the putative agent have the power to affect the putative principal’s relations with third parties. Elias LJ at [34] agreed with the outcome in relation to the complaints brought by police officers in Yearwood, but did not think that it had turned on this point. At [38] he also questioned how significant the difference between the two concepts was. He noted that the authors of Bowstead recognised that someone could be an agent even where this feature is missing. He continued:

“39. Even in the so-called "general concept of agency" advanced in Yearwood, it would be necessary to show that a person (the agent) is acting on behalf of another (the principal) and with that principal's authority. Once it is recognised that the legal concept does not necessarily involve an obligation to affect the legal relations with third parties, I doubt whether the concepts are materially different. 40. But ultimately it is not necessary for the purposes of appeal to resolve that question. Whatever the precise scope of the legal concept of agency, and whatever difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer. She is no more acting on behalf of the employer than his own employees are, and they would not typically be treated as agents. (That is not, of course, to say that employees can never be agents; they might well be, depending upon the obligations cast upon them, such as where a senior manager is authorised to contract with third parties. He will be an employee but will also act as an agent when exercising the authority to deal with third parties.) 41. In my judgment, Ms Ausher's contract with Sodexo is the source of any authority she has to make decisions relating to the butcher's department in the Mess. It may be, as Ms Romney asserts, that ultimately the MoD would have the right to veto her presence, at least for good reason. But that limited degree of control comes nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf with respect to third parties.”

[31]Lewison LJ considered first the common law principle that an agent is liable in tort for any tort that he personally commits, citing a passage from Halsbury’s Laws of England. He continued:

“62. If the wrongful act is expressly authorised by the principal then the principal is also liable: ibid, para 150. But the principal may also be liable even if he has not expressly authorised the wrongful act. Halsbury explains, at para 151: ‘Where the act complained of is not expressly authorised by the principal, the principal is, while the agent is acting within the scope of his implied authority or within the scope of his apparent or ostensible authority, jointly and severally responsible with the agent, however improper or imperfect the manner in which the authority is carried out. It is immaterial that actual malice is an essential ingredient of the wrongful act, that the wrongful act is also a crime, or that the act in question has been expressly prohibited by the principal. ‘Where the act done by the agent falls entirely outside the scope of his authority, the principal will not be responsible.’ ” ‘Where the act complained of is not expressly authorised by the principal, the principal is, while the agent is acting within the scope of his implied authority or within the scope of his apparent or ostensible authority, jointly and severally responsible with the agent, however improper or imperfect the manner in which the authority is carried out. It is immaterial that actual malice is an essential ingredient of the wrongful act, that the wrongful act is also a crime, or that the act in question has been expressly prohibited by the principal. ‘Where the act done by the agent falls entirely outside the scope of his authority, the principal will not be responsible.’ ”

[32]Kitchin LJ agreed with both judgments.

[33]Hoppe v HMRC, EA-2020-000093, 11 October 2021 concerned complaints of detrimental treatment on grounds of having made disclosures, by an ex-employee of HMRC. These included complaints about decisions taken by the administrator of the statutory injury benefit scheme, under which he had made a claim, an advisor, and the Cabinet Office Minister responsible for determining injury benefits appeals, advanced on the footing that all of them were agents of the employer. The claimant appealed to the EAT against a decision striking out those complaints. At [63] I said:

“I consider that the reasoning in Kemeh is equally applicable when considering the PD detriment provisions of the 1996 Act. The wording is materially the same, and this is one of those contexts where it makes sense to treat the PD detriment provisions as akin to a form of anti-discrimination legislation. For the purposes of what I have to decide, an extended analysis is not necessary. The starting point is that, having designated no other approach, Parliament must be assumed here to have adopted the common law approach to the legal concept of agency.”

[34]I went on to hold that the tribunal did not err in striking out these complaints, in particular because neither the existence of a contract (if there was any) nor the fact that HMRC benefited from the putative agents’ decisions would, alone, be enough to establish agency; and because these protagonists derived their respective authority not from HMRC, but from statutory powers.

[35]In Unite the Union v Nailard

[2018] EWCA Civ 1203

;

[2019] ICR 28

an employed union official alleged sexual harassment by two lay officials. The Court of Appeal held that under section 109(2) the union was liable for acts of the officials as its agents, done in the course of the performance of their authorised functions, which did not exclude conduct towards employees of the union.

[36]Underhill LJ (Moylan LJ concurring) said (I have omitted the endnotes):

“42. The starting-point is the statement of Elias LJ at para. 11 of his judgment in Kemeh that the effect of what is now section 109 (2) is that "the principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do" (see para. 19 above). That formulation effectively equates the circumstances in which a principal may be liable for the acts of an agent with the "course of employment" test governing the liability of employers for the acts of their employees. It may well extend the scope of the liability beyond what would apply at common law; but there is no reason why Parliament should not have chosen to effect such an extension in discrimination cases. (This approach is not of course in any way inconsistent with the Court's insistence that the terms "agent" and "authority" should be construed in accordance with "ordinary legal parlance": that point was being made in response to the argument about whether Ms Ausher was the MoD's agent at all, not to the question of whether it would be liable for her acts if she were.) 43. If, therefore, the effect of the language of section 109 (2) is to render a principal liable for the acts of his or her agents done in the course of the performance of their authorised functions, I can see no justification for limiting that liability in the way proposed by Mr Segal. An agent may stand in the shoes of the principal in dealing with A, but if while wearing them he treads on B's toes I see no good reason why he should not be liable to B just as much as if it had been A's toes that were crushed: in both cases the wrong is done in the course of performing the authorised functions. The proposition based on Bowstead and Reynolds that it is inherent in the principal/agent relationship that the agent be in a position to affect the principal's legal relationship with third parties is fine as far as it goes, but it misses the point that we are not here considering whether an agency relationship exists at all but with liability in tort for acts done in the course of it. The same goes for the passages which Mr Segal relies on from Kemeh. The question in that case was indeed whether there was any agency relationship between Ms Ausher and the MoD, and that is why it was relevant for Elias LJ to point out that she had no authority to act on its behalf as regards third parties. But that is not the question here... .”

[37]In Bashir v LB Barking & Dagenham

[2024] EAT 154

the claimant sought to bring an Equality Act harassment complaint against her employer in respect of an email sent by the fourth respondent. The EAT identified that to establish such a liability the fourth respondent would need to be the agent of the employer. It overturned the tribunal’s decision striking out the complaint.

[38]After citing Kemeh the EAT observed:

“25. The Employment Tribunal did not analyse the tasks performed by the 4th Respondent and the extent to which, if any, the 1st Respondent had provided authority to the 4th Respondent to act on its behalf. There was a potentially significant difference between this case and Kemeh in that the 1st Respondent specifically pleaded that the 2nd Respondent through its employees 3rd and 4th Respondents caried out its statutory duty to provide care for Child A. I consider that the Employment Tribunal erred in law in holding is was not reasonably arguable that the 4th Respondent acted as agent for 1st Respondent. The analysis of this question will require careful factual consideration of the relationships between the 1st Respondent and the 2nd Respondent and their employees the 3rd and 4th Respondents and the extent to which the 1st Respondent has provided authority to 2nd Respondent and it employees to act of behalf of the 1st Respondent.”

[39]In Anderson v CAE Crewing Services

[2024] ICR 1084

the EAT held at [29] that an independent contractor can also be an agent. At [31] it concluded that the tribunal in that case had erred by concluding that two individuals were not agents of the respondent because they were independent contractors. It said:

“The question of whether they acted as agents was not necessarily answered by determining whether they were independent contractors, although the factors relied on in concluding that they were independent contractors could be highly relevant to the determination of whether they were acting as agents for the respondent.”

The Grounds of Appeal and Cross-Appeal

[40]There are six grounds of appeal. They are numbered 1, 2, 3, 4, 6 and 7 and I will retain that numbering. The challenges raised by the grounds of appeal are, in summary, as follows.

[41]Ground 1 contends that the tribunal erred by holding at [59] and [60] that, because they were retained under contracts for services, the fourth and fifth respondents could not be agents of the first respondent. Being service providers did not, in law, preclude them from also being agents. Further, it is said, they were at least arguably appointed to enable the first respondent to carry out its duty to treat the claimant fairly under section 98(4) of the 1996 Act and related case-law, so affecting its legal relations with him, which was a pointer to an agency relationship.

[42]Ground 2 contends that the tribunal erred by holding at [60] that the fourth and fifth respondents could not be agents of the first respondent because they were not fiduciaries. Not being fiduciaries did not, in law, preclude them from also being agents.

[43]Ground 3 contends that the tribunal erred by failing to consider under whose authority the fourth and fifth respondents were acting. Had it done so it could only have concluded that they acted under the authority of the first respondent. This was an aspect that needed to be considered at trial.

[44]Ground 4 contends that the tribunal erred in the fourth sentence of [60] by failing to take the claimant’s case at its highest. There was evidence of “collusive control” that ought to have been considered at trial, because a high degree of control is, in law, a strong indicator of agency. The tribunal, it is said, wrongly made a finding of fact in relation to a hotly-disputed aspect of the claim.

[45]Ground 6 contends that the tribunal erred at [51] in considering that contentions that the hearings had been conducted unfairly could only be relevant to whether the dismissal was unfair, and could not support inferences about collusive agency. The error was compounded at [56] by the tribunal drawing inferences against him.

[46]Ground 7 develops that last point. It notes that witness statements were tabled at the hearing and witnesses deposed to their truth, though they were not cross-examined. It contends that the tribunal, in the last part of [56], accepted the respondents’ witnesses’ case, rather than the claimant’s case, being that he was effectively dismissed by the fifth respondent. It also contends, in support, that Mr Wayne appeared to treat the appeal as being from a decision of the fifth respondent.

[47]The fourth respondent’s contingent cross-appeal contends that the tribunal erred at [62] by ignoring the fact that the claimant did not allege that the fourth respondent was the decision-maker in respect of any of the detriments; and, in respect of dismissal, erred by conflating the allegations against the fourth and fifth respondents. The tribunal is said to have failed to recognise that liability for whistleblowing detriment is not a “chain of causation” test, but falls on the decision-maker. Alternatively, this part of the decision is said to be non-Meek compliant.

[48]In the course of oral argument Mr O’Dair abandoned the challenge to the striking out of the complaints against the fourth and fifth respondents in relation to the suspension of the claimant and notification of his ceasing to be director. He also indicated that he was content to treat the fourth respondent’s cross appeal as also applicable to the fifth respondent. There was a further post-hearing written submission from Mr O’Dair, relating to certain of the authorities, and which also resiled from his oral concession regarding the cross-appeal. I thereupon permitted supplementary responses from the respondents and a final reply from Mr O’Dair. Mr Kelly’s short response applied, if required, for permission to amend in that regard. That was resisted in Mr O’Dair’s final rejoinder.

Discussion

[49]The place to start is with the relevant pleadings before the tribunal. The particulars of claim asserted at [4] and [5] that the fourth respondent was “appointed as agent of the First Respondent to carry out an investigation into the grievances”; and the fifth respondent was “appointed as agent of the First Respondent to carry out disciplinary proceedings.” The account that they gave of events included matters relating to the processes conducted by each of the fourth and fifth respondents, and the interactions of the claimant and/or his solicitors with each of them. The particulars concluded at [68] by summarising the claimant’s claims, including, as against the fourth and fifth respondents:

“as workers/agents of the First Respondent, that he was subjected to a detriment, namely that he was suspended on 6 April 2023, filings made stating his directorship had been terminated and he was dismissed, by reason of making a protected disclosure contrary to section 47B of the ERA 1996 for which the First Respondent is also liable under section 47B(1B) ERA 1996.”

[50]The grounds of resistance of the first three respondents asserted that the claimant was dismissed by the third respondent on behalf of the first respondent. The grounds of the fourth respondent denied that he was a worker or agent of the first respondent, and asserted that the fourth respondent had not been involved in any of the acts complained of as detrimental treatment. The grounds of the fifth respondent denied that she was a worker or agent of the first respondent and submitted, further or in the alternative, that, if she was considered to be an agent of the first respondent “the Claimant’s allegations do not relate to anything done by R5 for R1 with the authority of R1 and therefore R5 cannot be held liable as an agent under section 47B(1B) ERA.” They denied that she was involved in any of the decisions complained of as detrimental treatment.

[51]Attached to the minute of the case-management hearing on 10 October 2023 (which directed the PH that later considered the strike-out application), was an agreed list of issues. That repeated the three detriments complained of, but now identifying the first two as acts of the first respondent. No further particulars of how, legally or factually, the claimant put his claims against the fourth or fifth respondents were identified in the minute or the list of issues. In her decision on the strike-out application EJ Moss noted that Mr O’Dair confirmed that the assertion that the fourth and fifth respondents were workers (as opposed to agents) of the first respondent was not pursued.

[52]Pausing there, I note the following. It was certainly clear from the particulars of claim that the claimant claimed that he had been dismissed because he had made protected disclosures, and that this had been “pre-decided”. The particulars of claim also specifically asserted that the fourth and fifth respondents acted as agents of the first respondent in carrying out their respective grievance or conduct procedures. However, the pleaded acts of detrimental treatment were expressly said to be – only – the suspension, the directorship removal, and the dismissal. While the particulars of claim also asserted at the end that the fourth and fifth respondents were both liable for the dismissal as agents of the first respondent, they did not elaborate on the legal or factual basis for that contention.

[53]I note also that usually agency is invoked where it is sought to hold a human actor and/or the corporate employer, liable, or co-liable, for particular actual conduct of that human actor, in a case where the employer disavows such liability. But in this case the employer – the first respondent – accepted that all three acts complained of had been carried out on its behalf, and that it would be liable in respect of them, were the substantive complaints about the reasons for them to succeed.

[54]Further, the fourth and fifth respondents were not said by the claimant to be the human agents who actually carried out (whether solely or jointly) the actions complained of. Mr O’Dair confirmed in his skeleton and oral submissions for this appeal that it was not contended that the fourth respondent had been involved in the actual dismissal. As for the fifth respondent, while the grounds of appeal contended that she had “in reality” dismissed him, it was not claimed that she had actually taken, or implemented, the decision. Rather, as the tribunal recorded at [49], Mr O’Dair’s submission had been that the fifth respondent relied very heavily, if not solely, on the factual findings of the fourth respondent, and the claimant was dismissed almost entirely in reliance on the fifth respondent’s report. The way that Mr O’Dair put it in the EAT was that her report was decisive, because the third respondent had relied entirely upon it and his decision was merely a rubber stamp.

[55]As was discussed in Kemeh, if another company or person is found to have acted as the agent of the employer in carrying out a particular task or functions, then liability will sound under the discrimination or whistleblowing legislation against both of them, in respect of anything done in the course of that activity. The reference in the statutory provisions to the agent acting “with the authority” of the principal does not connote that the principal must have authorised, or sanctioned, the specific conduct of the putative agent, in the course of that activity, of which complaint is made.

[56]However, the mere fact that a company or person has been appointed as an agent to carry out particular tasks or functions does not mean that they, or the employer, will be liable for conduct by them that does not occur within the scope or context of carrying out those particular tasks or functions that fall within their remit. As Elias LJ explained in Kemeh at [11] agency liability bites on the agent’s conduct “in the course of carrying out the functions he is authorised to do”. The same point is made in the second sentence of the citation from Halsbury by Lewison LJ at [62] of his judgment; and it also underpins the discussion in the passage I have cited from Nailard.

[57]In this case, therefore, even if the claimant’s case, as set out at [4] and [5] of the particulars of claim, that the fourth and fifth respondents acted as agents of the first respondent in respect of their respective investigations and reports, should have been regarded as arguable, it would not necessarily follow that he also had an arguable case, as set out at [68] of the particulars of claim, that either or both of them were also agents of the first respondent in respect of the dismissal; and it was plainly the respondents’ cases that decisions about whether to dismiss the claimant, or indeed to subject him to any disciplinary sanction, were neither taken by either of them, nor within their respective remits.

[58]However, before the tribunal the claimant contended that both of these respondents acted as agents of the first respondent in carrying out their respective remits and that they were liable as agents in respect of the dismissal (and other claimed detrimental conduct). No separate basis for establishing agency liability in respect of the latter was identified. At the PH before EJ Moss, the question of whether, in each case, the respondent in question was an agent of the first respondent, was postulated as a general issue; but some points go to one only of the two aspects, some appear to have been said to be relevant to both; and the analysis in the arguments and conclusions requires some disentangling.

[59]There are two parts to ground 1. First, the tribunal is said to have proceeded on the basis that the fact that the fourth and fifth respondents were hired as service providers, for whom the first respondent was a client, precluded their being agents. Reliance is placed on the reference at [59] to the argument that they were acting under contracts for services “rather than” as agents, and on the passages within [60] in which the tribunal used the conjunctions: “as opposed to” and “rather than”.

[60]As to that, the tribunal referred at [26] to Mr Cordrey citing Kemeh holding that the common law concept in essence applied, and the encapsulated definition in Bowstead; at [28] to him citing from Bowstead that “the mere fact” that one person does something to benefit another who relies upon, and may have contracted them, to do so, does not establish agency; at [37] and [38] to submissions by Mr Kelly citing Hoppe, that it is “insufficient” to establish agency, that the putative agent is providing services to the putative principal under a contract, and contending that the fifth respondent was “just” such a contractor. Further, in her conclusions at [53], the judge cited Hoppe for the same point; and at [54] she referred to the need for there to be something “over and above the mere provision of services under a contract”. The same point was made at [55].

[61]In light of all those passages, I do not think the judge fell into the error asserted by the first part of ground 1. Rather, her remarks in the course of [59] and [60] were made within the context of her consideration of whether there were any features over and above the fact that these two respondents were contracted to provide certain services, which pointed towards agency relationships.

[62]However, the second part of this ground contends that the tribunal erred by failing to take into account that there were such features, in particular, that each of these respondents were appointed, and given authority to act, in a way which enabled the first respondent to fulfil its obligations to act fairly in accordance with section 98(4) of the 1996 Act. Mr O’Dair noted that the grounds of resistance of the first to third respondents relied on the procedures followed by the fourth and fifth respondents as its own, in support of the contention that the dismissal was fair. He relied on McGlennon, on Yearwood, with respect to the treatment of Mr Husain by Mr Robinson, and on Weeks as all supporting the conclusion that this type of feature pointed towards agency.

[63]For the respondents it was contended that the police cases could be distinguished because they concerned the peculiar statutory provisions relating to police officers, and that they showed no more than that the delegation of authority to take decisions affecting matters such as an employee’s actual “hard” terms and conditions, such as hours and pay, could establish an agency relationship. In this case the fourth and fifth respondents did not have the power to take any such decisions, such as on whether to discipline the claimant, and so their remits fell short of a power to affect legal relations.

[64]My conclusions on this point are as follows.

[65]First, while Mr Cordrey fairly submitted that the general authorities on the concept of agency, and the commentary in Bowstead, indicate that the power to affect the putative principal’s legal relations with third parties is one of the hallmarks of agency, so that it would be unusual and atypical for an agency relationship to exist without it, as he was bound to acknowledge, those authorities do not hold that it is an essential requirement in every type of case.

[66]Secondly, and importantly, while the authorities indicate that the provisions of the legislation relating to discrimination and whistleblowing have adopted the common law concept of agency, nevertheless that concept falls to be applied by employment tribunals in the particular and peculiar context of an employment relationship, and its dynamic nature, and keeping in mind the underlying purpose of the legislation. The fact that, in other commercial contexts, it would be unusual for a person who cannot alter the putative principal’s “hard” legal relationship with a third party to be treated as an agent, should not necessarily be taken as casting light on how the concept of agency might or might not apply in the context of a claim arising from an employment relationship.

[67]The reasoning in McGlennon and Yearwood and Weeks did not turn on the provisions deeming police officers to be employees, but on whether the impugned conduct occurred during the course of activities that related to the relationship and could have been carried out by the deemed employer. Further, the significant point in McGlennon was that decisions about deployment and posting formed part of the management of the relationship; and the Husain/Robinson complaint in Yearwood was about what allegedly occurred during the course of a disciplinary hearing. Liability did not in either case depend on the contractual terms, or the status of the contract, having changed.

[68]In summary, within the context of an employment relationship, where the complaint relates to the conduct of someone acting on behalf of an external provider, the material issue is whether the services that they are contracted to provide relate to a significant aspect of the employment relationship, rather than some other aspect of the employer’s business or activities. Taking that approach, someone who incidentally comes into contact with employees in the course of providing a contracted service to their employer, which is itself unrelated to an employment relationship, is unlikely to be regarded as an agent for these purposes. But I do not see why a person who is retained to carry out an employment-related procedure, such as a grievance or disciplinary investigation, could not be regarded as the employer’s agent in the course of carrying out those functions.

[69]In this case Mr O’Dair pointed to the letter of 13 January 2023, which informed the claimant of the fourth respondent’s appointment by the first respondent to investigate and report to its board on the grievances against him, and inviting him to attend a grievance meeting with the fourth respondent; and to the letter of 17 March 2023, informing him of the fifth respondent’s appointment to conduct a disciplinary hearing on the first respondent’s behalf, and requiring him to attend. I do not think that the fact that each of them was an outsider who (on the respondents’ case) had complete freedom to speak as they found, would preclude the conclusion that they were acting as agents when carrying out their remits. In so far as the tribunal considered that this feature pointed to the conclusion that they were not arguably acting as agents in carrying out their remits, it therefore erred.

[70]However, I do not agree that, because the first respondent relied, and relies, on the investigation processes carried out by either or both of these respondents on its behalf in support of its case that, for the purposes of the unfair dismissal claim, the Burchell criteria were fulfilled, therefore these respondents were arguably co-liable for the dismissal itself as an agent of the first respondent. There is simply no arguable doctrinal basis for such a conclusion. Arguments about whether those processes were in fact fair or adequate might be said to go to whether the first respondent had fairly dismissed, or potentially, to support inferences about the reason for dismissal, for the purposes of the automatic unfair dismissal claim; but those are different questions.

[71]The same applies to Mr O’Dair’s argument based upon causation. The fact that it may be said that the activities, and reports, of these two respondents were essential links in the chain of causation leading to the decision to dismiss, and that that decision was reliant on either or both of these reports, could not arguably provide a basis for imposing liability on the fourth or fifth respondents for that decision itself, on the basis of agency. Even if the tribunal might, for example, conclude that the third respondent’s decision to dismiss, taken on behalf of the first respondent, was wholly reliant and predicated upon the fifth respondent’s report, that was still a distinct decision, taken and implemented by him, and not by her. Had he not taken that step, it would plainly have been untenable to contend that the content and delivery of her report, as such, amounted to an act of dismissal.

[72]Mr O’Dair relied upon Timis as showing that the termination of a contract of employment can amount to detrimental treatment by a human respondent other than the employer, within the scope of section 47(1B). But in Timis the individuals concerned had themselves taken the actual decision to dismiss. That is not the claim advanced against the fourth or fifth respondents in this case.

[73]Ground 2 contends that the tribunal erred at [60] because it considered that, if the fourth and fifth respondents were not fiduciaries, then they could not be agents. Counsel for the respondents contended that the tribunal merely relied upon its conclusion that there was no reasonable prospect of establishing that a fiduciary relationship existed, as part of its overall reasoning, which it was entitled to do, having regard to that being ordinarily another of the hallmarks of agency.

[74]As to that, I note that the tribunal’s summary of the submissions did not identify that a fiduciary relationship is not always and invariably essential. Further, at [54] the tribunal said that the concept of agency “requires there to be a fiduciary relationship”, although it then talked more broadly about the need for there to be “something over and above” the contractual provision of services. Further, as I have discussed in relation to ground 1, I think it would be wrong to say that there was no reasonable prospect of agency being established in law, in relation to the functions that these two respondents were retained to carry out. But, once again, this does not assist the claimant’s case as to the existence of agency liability in relation to the detriments of which he in fact complained.

[75]Ground 3 asserts that the tribunal erred by failing to consider under whose authority the fourth and fifth respondents acted “when carrying out the disciplinary investigation and disciplinary hearing”. It should have concluded (or at least held that it was arguable) that they acted under the authority of the first respondent. That is said to be a point of distinction from the facts of Kemeh. There is some overlap here with the earlier grounds. It does appear to me, particularly from passages at [55], [56] and [60], that the tribunal – wrongly – relied in part on its view that the fourth and fifth respondents were not arguably acting under the authority of the first respondent, in support of its conclusion that they were not arguably acting as its agents in respect of their functions; but, once again, that does not assist in relation to the agency argument relating to the dismissal.

[76]Ground 4 contends that, at [60], the tribunal did not take the claimant’s case at its highest, as there was sufficient evidence of “collusive control”, which, if found, would give rise to a finding of agency. In this regard reliance had been placed before the tribunal on a number of features of the facts or evidence, including: the fact that there was no written letter of engagement for the fourth respondent, who was instructed in an airport meeting; the fact that the fourth respondent declined to consider the claimant’s case that the grievances against him were a reaction to his having made allegations of fraud; and evidence of email trails, which it was said showed that the fifth respondent had been guided by Mr van Zyl in declining to consider the claimant’s allegations of whistleblowing. In light of these features, it is said, in concluding that these respondents necessarily had to receive some instruction as to their tasks, but thereafter performed their roles as contracted, the tribunal made adverse findings on a hotly-contested factual aspect. That error is said to have been exacerbated by the tribunal having received sworn evidence from witnesses.

[77]Taking that last aspect first, it is potentially of some concern that the tribunal which directed the PH gave directions for witness statements, and that witnesses were then empanelled and sworn, albeit not cross-examined, given that the purpose of the hearing was not to determine a preliminary issue, but to decide whether to make strike-out or deposit orders. (On this see Caterham School Ltd v RoseUKEAT/0149/19 and E v X,

UKEAT/0079/20

. I have discussed this point again recently in Rainwood v Pemberton Capital Advisors LLP

[2025] EAT 51

.) However, the tribunal stated in terms, at [7], that the hearing “proceeded on the basis of submissions”; and this remark introduced a section which set out what it called (and which it appears to me are) undisputed facts.

[78]Further, the tribunal’s self-direction as to the law cited pertinent authorities and principles concerning the power to strike out a complaint as having no reasonable prospect of success, including the following summary of the key principles in Mechkarov v Citibank NA

[2016] ICR 1121

at [14]:

“(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant’s case must ordinarily be taken at its highest; (4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”

[79]The tribunal also recognised that the authorities indicate that these principles are applicable to whistleblowing claims as well as to discrimination claims.

[80]In a case where the tribunal has given itself a correct self-direction as to the law, the EAT will be slow to find that it has then failed to follow it, unless that is plainly and unambiguously apparent from the dispositive reasoning. I note in this regard that the tribunal specifically opened paragraph [60] with the words “[t]aking the claimant’s case at is highest.” It also did not in that paragraph purport to make any findings of fact. Having regard to all of these features, I am not persuaded that the fact that witnesses were deposed and swore to the truth of their statements led it into error as such.

[81]What remains, however, is Mr O’Dair’s contention that there was a disputed factual issue about the degree of control or influence that the first respondent had (through whatever route) exerted over the fourth and fifth respondents, in relation to their investigations or reports, such as by constraining their remits to exclude any consideration of the claimant’s case about the significance of his (claimed) whistleblowing to the complaints of misconduct on his part; and that it was wrong to dismiss the claimant’s case in this regard as pure speculation and a fishing expedition, given the features to which he had pointed; and that this was relevant to the issue of agency.

[82]This, it seems to me, is an example of an argument which was deployed both in the service of the contention that the fourth and fifth respondents were arguably acting as agents of the first respondent in carrying out their respective remits; and in the service of the contention that they each fell to be treated as agents of the first respondent in respect of its decision to dismiss.

[83]As I have already set out, in the particular context of an employment relationship, I do not think that the mere fact that the person conducting a grievance or disciplinary investigation is an external appointee, who carries out their duties, and writes their report, independently, would mean that they could not, in law, be regarded as the agent of the employer in relation to their conduct in the course of carrying out their remits. Nor do I think that findings as to the degree of control, direction, or constraint, to which they were subject in that regard would necessarily always be irrelevant. The authorities on agency, both in and out of the employment field, indicate otherwise.

[84]However, once again, that is a distinct question from whether – if found at trial – the exercise by the first respondent of some form of constraint or control over the fourth or fifth respondents, along the lines argued, could arguably support the conclusion that either of those respondents was co-liable for the dismissal as its agent. Once again, even if it might be arguably contended that any such findings could support the claimant’s claim that he was automatically or ordinarily unfairly dismissed, they could not found liability on the part of the fourth or fifth respondents, through the agency route, for conduct which was not theirs, and which was not arguably within the scope of their authority.

[85]Ground 6 is in similar territory. It contends that the tribunal erred at [51] in concluding that various (alleged) features of the conduct of the processes before the fourth and fifth respondents could not lead to inferences about what it refers to as collusive agency. In his skeleton argument Mr O’Dair contends that the tribunal erred because it failed to recognise that, if the claimant was unfairly treated, that could potentially be relied upon to support an inference that his treatment was influenced by his having made prior protected disclosures, which had angered those who were instructing the fourth and fifth respondents. But, once again, while that argument might be deployed in the service of the complaints against the first and third respondents, it was not an arguable route to establish agency liability for the dismissal on the part of the fourth or fifth respondents themselves.

[86]Ground 7, in so far as it relies upon the procedure adopted in relation to witness evidence, overlaps with the same strand of ground 4, and I do need to repeat what I have already said about that aspect. This ground, however, also particularly focusses on what it says was the claimant’s case that it was the fifth respondent who “in reality” dismissed the claimant. Reliance is also placed on passages in Mr Wayne’s report which focus on the fifth respondent’s conclusions in her report, in support of the contention that Mr Wayne considered that he was hearing an appeal against her decision. This is said to be a disputed factual issue, which the tribunal wrongly resolved in favour of the respondents in the last part of paragraph [56], rather than leaving it to be decided at trial.

[87]Once again, as I have discussed, I think that it was, and is, arguable that the fifth respondent acted as the first respondent’s agent in respect of the functions and tasks that fell within her retainer. But it was not arguable that this extended to the making of the decision to dismiss, or that she was, by the legal route of agency, co-liable with the first respondent in respect of that decision. Had it been alleged, and then found at trial, that she had actually, despite appearances from the contents of her report, and the dismissal letter, which was signed by the first respondent, taken part in the decision to dismiss, the position would have been different. But that is not how the claimant puts his case.

[88]As I have explained, the fact that the dismissal letter expressly drew on the fifth respondent’s report and findings would not arguably support the contention that she was co-liable as an agent in respect of the dismissal. As for Mr Wayne’s report, it identified in its opening paragraphs that the dismissal decision had been taken by the third respondent, in light of the fifth respondent’s report following her investigation. It is not surprising that he therefore considered her report when reviewing the decision to dismiss; but I cannot see that his report showed that he considered that the decision had in fact been taken by her; or that it arguably leant support to the claimant’s case against her.

Conclusions

[89]Drawing the threads together, the tribunal did err in concluding that it was not arguable that the fourth and fifth respondents were acting as agents of the first respondent in respect of the carrying out of their respective remits – to investigate, report and recommend.

[90]However, under the umbrella of its discussion of the agency issue, the tribunal also considered the arguments as to whether the fourth or fifth respondents could arguably be held liable as agents for the dismissal. Mr O’Dair’s arguments based on a chain of causation, linking their respective reports to the first respondent’s decision to dismiss, the heavy reliance that it was said to have placed on their reports, and the concepts of collusive control and/or joint enterprise, did not in fact form any part of the claimant’s pleaded case. But the respondents in any event responded to them at the PH and contended that they did not provide a route to agency liability of these respondents for the dismissal. Those arguments on both sides were set out in some detail by the tribunal, in its very full summaries of the submissions of the four counsel, and then adverted to at points in the course of its conclusions.

[91]It therefore appears to me, reading the decision as a whole, that the tribunal did take these arguments fully into account, in reaching its conclusion that the claims against these two respondents had no reasonable prospect of success; and also that, in any event, they could not have been properly regarded as providing a sound doctrinal basis for holding them liable as agents for the dismissal.

[92]The tribunal expressly described its closing remarks at [62] as academic; and its conclusion that the claims against these respondents had no reasonable prospect of success did not rely upon it. The outcome of the appeal does not turn on it. In light of that outcome I do not need to consider the fourth respondent’s contingent cross-appeal, nor the fifth respondent’s post-hearing application to be permitted to amend to run a similar cross-appeal. Nevertheless, I have considered whether what the tribunal said at [62] casts doubt on any of the reasoning on this appeal that I have set out thus far.

[93]Following the approach that it set out at [6] the tribunal had, in its decision thus far, considered whether either of these respondents were arguably agents of the first respondent. As I have discussed, the arguments and conclusions covered both whether each of them was arguably an agent in respect of their given tasks, or arguably an agent in respect of the dismissal. As I have discussed, the tribunal did not err by failing to conclude that the claimant had an arguable case on that second issue, and, for that reason, did not err in striking out these claims. Although at [6] the tribunal identified a “secondary issue” of whether these respondents could be said to have subjected the claimant to any of the detriments, to which it returned (though it said it did not need to) at [62], that issue, had, it seems to me, already been substantively addressed in its consideration of the agency arguments.

[94]What remains is whether the tribunal had some other argument in mind in the passage: “If there was a genuine issue to be resolved at trial about the true nature of their roles…”; but its reference to this having been “raised as a separate issue” casts no further light on that. In Mr O’Dair’s final rejoinder in the post-hearing submissions, he submitted that the fourth respondent had contributed causally to the dismissal “by producing a flawed report by reason of protected disclosure”; and he cited particular passages from his skeleton argument at the PH. He submitted that, if the pleadings did not without amendment support that case, EJ Moss would have needed to consider whether to allow the claimant to amend. He cited Rainwood (above) at [72], [77] and [81].

[95]As to that, the passages in Mr O’Dair’s skeleton for the PH in the tribunal to which he referred raised the “chain of causation” argument, that the reports were “material causes” of the dismissal, because the decision to dismiss was taken almost entirely in reliance on the fifth respondent’s report, which in turn is said to have relied very heavily on the findings in the fourth respondent’s report. However, as I have discussed, that argument, though not pleaded, was considered by the tribunal; and in any event it did not advance an arguable basis for holding them liable as agents for the dismissal.

[96]Mr O’Dair submitted that part of what he meant by his arguments before the tribunal that there was “collusive” control or joint enterprise, was that the fourth and fifth respondents were themselves adversely influenced by knowledge of the claimant’s claimed disclosures in the way that they conducted their processes and/or their conclusions in their reports. However, the respondents fairly submitted, both to the tribunal, and in their responses to this appeal, that the claimant had not pleaded any detrimental treatment by either of these two respondents, in relation to any aspect of their conduct of their respective processes or the contents of their reports.

[97]Further, I do not think that, in the circumstances of this case, the tribunal erred by not proactively picking up on this line of argument and considering whether to allow an amendment. The claimant was represented by solicitors from the outset, and by counsel at the case management PH at which an agreed list of issues, confirming and identifying the – only – three detriments complained of, was produced, and by counsel at the PH before EJ Moss. There was ample opportunity for an application to amend to have been made. The facts are far removed from those of Rainwood, and the earlier authorities concerning litigants in person, to which it refers on this point.

[98]I have reflected that it might be said that, in substance, the natural reading of the account of events given in the particulars of claim was that the claimant is critical of the fourth and fifth respondents for (on his case) being unwilling to consider his arguments about the significance of his claimed disclosures, and deferring to the first respondent, or its solicitors, on such matters, and that it is implicit in that, that he considers that they, too, were adversely influenced by knowledge of such disclosures. But the difference between these ways of putting the case matters, and I agree with Ms Millns’ submission that any such complaint of detrimental treatment should have been pleaded (or a specific application to introduce it by amendment made).

[99]The fourth and fifth respondents were entitled to know if they were being accused personally of treating the claimant adversely because of knowledge of his claimed disclosures, and, if so, in respect of which aspects of how they carried out their roles, and/or of the conclusions or recommendations in their reports. I note also that the issues relating to what heads of damage might properly flow from the upholding of a complaint relating to such treatment, including whether that could extend to losses flowing from the later dismissal by the first respondent, would be different.

Outcome

[100]For all of these reasons, I conclude that, while elements of the grounds of appeal have succeeded, there was no arguable basis advanced for the contention that these two respondents were each co-liable, as agents, for the dismissal. That, apart from the complaints relating to the other two detriments, in respect of which this appeal is no longer maintained, was the sole basis of the specific claims against them. It was not an error to conclude that those complaints had no reasonable prospect of success, and strike them out. The appeal is therefore dismissed.