Whistleblowing – Are external consultants liable for detriment?

S47B Employment Rights Act 1996 provides that an employer is liable for any detriment levied against an employee or worker for making a protected disclosure (s 43B ERA refers).

What about a situation where the person allegedly making the decision or recommendation to levy the detriment is not the employer but an eternal consultant?

The question then arises as to whether the external consultant is acting as an ‘agent’ of the employer.

In Handa v The Station Hotel and others [2025] EAT 62,  two external consultants had been involved in the investigation of a grievance by an employee (the Claimant).  The grievance was partially upheld but, in the investigation, one of the consultants came to the conclusion that the employee had a case of gross misconduct to answer and that, if found, dismissal would be justified. There followed a disciplinary hearing after which the employee was dismissed summarily for gross misconduct.

Mr Handa claimed automatic unfair dismissal against the employer but also the consultants on the basis that they were acting as agents and were responsible for the detriments that had arisen from the grievance process, including the dismissal. He also alleged that his employer had adversely influenced the outcome of the disciplinary process.

The court held that, consultants can, in principle, act as agents for the employer. To be liable however, a consultant must be guilty of a causative act/omission.
The ET went on to hold, in this case, that the consultants had only recommended dismissal and so had not taken an active part in the decision to discipline or  dismiss.