Mr Neeraj Handa v The Station Hotel (Newcastle) Limited and 5 others — 2023

At the open preliminary hearing on 6-7 December 2023, the tribunal considered whether the whistleblowing detriment claims against Mr Duncan and Ms McDougall should be struck out, or alternatively made subject to deposit orders. The claimant alleged that he had made protected disclosures and was subjected to detriments by being suspended on 6 April 2023, removed as a director on 13 April 2023, and dismissed on 17 April 2023. The question for the hearing was whether the fourth and fifth respondents could be liable under section 47B ERA 1996 as agents of The Station Hotel (Newcastle) Limited.

The tribunal found that both Mr Duncan and Ms McDougall were independent HR consultants operating under contracts for services. Mr Duncan had been engaged to investigate grievances and make recommendations, and Ms McDougall had been engaged to conduct the disciplinary hearing and make recommendations. The tribunal accepted that each made recommendations only, and that the first respondent remained free to accept or reject them. It held that the relationship did not have the fiduciary character required for agency, and that giving instructions about scope did not mean the consultants were acting on behalf of the company rather than providing services for its benefit.

The tribunal rejected the claimant's argument that the matter could be analysed as a joint enterprise, stating that this was a criminal law concept with no place in the employment context. It also rejected the submission that the respondents' pleaded case on the unfair dismissal claim was inconsistent with their position on agency. Applying the principles it identified from Kemeh, Hoppe, and the strike-out authorities, the tribunal concluded that the claims against Mr Duncan and Ms McDougall were hopeless and struck both out. It stated that, even if agency had been arguable, it would not have struck out on the subsidiary point about detriment, but that issue was academic once agency failed.