July Bulletin

Independent investigators not liable for whistleblowing dismissal

When handling high-stakes disciplinary or grievance matters, particularly involving senior staff, many businesses sensibly turn to external HR consultants or investigators to ensure objectivity, professionalism, and compliance. A recent Employment Appeal Tribunal (EAT) decision will come as welcome news for those operating in this space: unless they take an active role in making the actual decision to dismiss, external investigators cannot be held personally liable for alleged discrimination or whistleblowing-related dismissal. 

In Handa v The Station Hotel and others, the Claimant brought a claim of automatic unfair dismissal and whistleblowing detriment. He attempted to argue that two external HR consultants – Mr Duncan and Ms McDougall – were personally liable as “agents” of the employer, on the basis that their investigation reports had influenced the dismissal decision. 

Mr Duncan had investigated a grievance against the Claimant and found parts of it substantiated. Ms McDougall subsequently conducted a disciplinary investigation and produced a report suggesting dismissal for gross misconduct would be appropriate. The employer, The Station Hotel, relied on that report to make its decision to dismiss. 

The EAT rejected the argument that the consultants should be personally liable. It ruled: 

• External consultants can, in theory, be agents, but they must carry out a causative act or omission linked to the dismissal to attract liability. 

• Neither consultant made nor implemented the dismissal decision – this remained with the employer. 

• Even if the employer influenced their work, that alone did not amount to agency or legal liability. 

The claims against both consultants were struck out for having no reasonable chance of success. 

This decision will bring relief to independent HR professionals and investigators. But it also underscores the need for clear engagement terms. These should clearly define roles, confirm that decision-making rests solely with the employer, and ideally include an indemnity clause in case of future legal claims. Independent support remains a valuable tool, but boundaries must be clear.

Avoiding compulsory redundancies: creative alternatives for HR to consider

Making compulsory redundancies is rarely a simple business decision. Letting go of valuable talent can leave skills gaps just when the business may need to pivot or recover. Redundancy payments add up quickly, and the wider impact on staff morale, engagement and employer brand can be hard to repair. 

HR professionals are often tasked with finding solutions that preserve headcount while also delivering the savings needed. Below are some practical alternatives to explore before moving to compulsory redundancies: 

1. Voluntary redundancy schemes
   Inviting employees to step forward voluntarily can soften the blow. This gives people more control over their exit and often helps retain those most committed to staying. Be clear about the terms and retain the right to decline volunteers in business-critical roles. 
2. Changes to Terms and Conditions
   Consider amending hours, pay, or duties by agreement to reduce costs. Where agreement isn’t possible and the business case is compelling, the “fire and rehire” route may be a last resort- but tread carefully. There is a Statutory Code of Practice in this area now. Non-compliance could lead to tribunal claims and compensation uplifts. The Employment Rights Bill proposes to outlaw the practice, save where the business’s imminent survival is at stake.  
3. Unpaid Sabbaticals or Career Breaks
   In areas of low demand, offering short-term unpaid leave can provide breathing space without permanent job loss. Frame it as a development opportunity or reset. 
4. Job sharing or reduced hours
   Offering part-time working or job shares can achieve cost savings while retaining talent and flexibility. These options often suit those seeking better work-life balance. 
5. Freeze recruitment and reduce use of contractors
   Sometimes, cost savings can be achieved without affecting current staff—pause new hiring and consider trimming contractor use first. 

By thinking creatively and engaging early with employees, HR can often find workable alternatives that protect both people and the business.

How employers should deal with summer heatwaves

As UK summers get hotter, employers must take steps to protect staff from the risks of working in extreme heat. Heatwaves can affect productivity, comfort, and health. 

All employers are under a general duty under Health and Safety at Work Act 1974 to provide a safe working environment. This incorporates working at safe temperatures. There is no legal maximum temperature set out in UK law. However, the Workplace (Health, Safety and Welfare) Regulations 1992 say that workplace temperatures must be “reasonable”.  

If you don’t already have one, a warm weather risk assessment should be carried out and maintained. This will help you identify any particular risk areas and steps that can be taken to minimise those risks. These are often common-sense: fans, ventilation, relaxed dress codes, shaded areas for outdoor workers and access to water. 

Employers should be mindful that some employees face higher risks associated with heat. For example: 

• Outdoor workers (e.g. construction, delivery) need shade, sun protection, and hydration. 

• Pregnant employees may be more vulnerable to overheating. 

• Disabled employees: certain conditions may make temperature regulation harder. Reasonable adjustments may be needed under the Equality Act 2010. 

Employers have a clear duty to take heat seriously. It is important to be proactive and have a warm weather plan in place, which is clearly communicated to staff before a heatwave hits. Small adjustments can often make a big difference.

Fixed-Term Contracts: Key Issues for Employers

Fixed-term contracts are useful for temporary roles, such as maternity cover, project-based work or seasonal demand. But they come with risks that HR should manage carefully. 

Legal rights and protections 

Employees on fixed-term contracts are protected under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. From day one, they have the right not to be treated less favourably than comparable permanent staff. That includes equal access to pay, conditions, training, and benefits, pro-rated if needed. You can only justify differences if you have good business reasons and the overall package is of equal value. 

After four years on successive fixed-term contracts, an employee may automatically become permanent, unless there’s a strong business reason not to. Employers must also notify them of suitable permanent roles. 

Tricky areas to watch 

1. Pro-rata benefits: You don’t have to offer every benefit, like a company car for a short-term hire, but you’ll need to explain why and offer something equivalent if challenged. 
2. Ending the contract: Simply letting a fixed-term contract expire still counts as a dismissal. You’ll need a fair reason if the employee has 2+ years’ service – usually redundancy or “some other substantial reason” (e.g. the return of the employee they were covering). 
3. Early termination: Unless the contract allows for early termination with notice, ending it early may amount to wrongful dismissal. Include clear early termination clauses. 
4. Funding uncertainty: If you rely on external funding, you may be able to justify continued use of fixed-term contracts, but be prepared to defend this at the tribunal if necessary. 
5. Permanent roles: If you make the fixed-term role permanent but don’t offer it to the postholder, be cautious. Fixed-term employees should, at the very least, be offered the opportunity to apply for the vacancy. If you don’t want to offer the role to the temp, then you should try and make it as different as possible from the temporary position.  
6. Pregnancy or maternity: Not renewing a contract during pregnancy or maternity leave isn’t unlawful in itself, but a fair process is essential. Offer priority access to suitable vacancies and provide clear, written reasons for dismissal. 

Fixed-term contracts can be practical, but they’re not risk-free. A proactive, fair and transparent approach will help you stay compliant and avoid costly claims.

No need to make changes that won’t help: A reminder on Reasonable Adjustments 

Under the Equality Act 2010, employers must make reasonable adjustments for disabled employees. These changes are meant to remove or reduce any disadvantage the employee faces due to their disability. Adjustments might include things like flexible working, special equipment, or changes to how tasks are done. 

Employers should think about making adjustments when: 

• They know (or should know) that an employee is disabled; 

• The employee is struggling at work because of their disability; 

• The employee asks for support; or 

• A delay in returning to work or long sickness absence seems linked to a disability. 

But there’s a limit. Employers only have to make changes if they will actually help. If a change won’t reduce the disadvantage, it might not count as a reasonable adjustment. 

This was made clear in the case of Hindmarch v North East Ambulance NHS Foundation Trust. Mr Hindmarch, a non-emergency ambulance driver, had severe anxiety and was too anxious to attend work during the COVID-19 pandemic. Emergency staff got higher-grade masks (FFP3), while he and other non-emergency drivers were given a lower-grade one (FFP2). He argued that if he’d been given an FFP3 mask, he might have returned to work. He was later dismissed and claimed that the Trust failed to make a reasonable adjustment. 

The Employment Appeal Tribunal disagreed. They said that giving him an FFP3 mask would not have changed the situation – he still wouldn’t have returned to work. So, it wasn’t reasonable to expect the Trust to make that change. 

What this means for HR

Reasonable adjustments must be practical, realistic, and likely to help. If a change won’t remove or reduce the disadvantage a disabled employee faces, then the employer isn’t required to make it.

Redundancy: Don’t cut corners on alternative employment 

A genuine redundancy and fair selection process aren’t enough on their own to carry out a fair redundancy dismissal. Employers also have a legal duty to explore alternative roles for affected employees – and taking a half-hearted approach, risks making the whole process unfair. 

That’s the clear message from the recent case of Hendy Group v Kennedy. Mr Kennedy was a training manager at a car dealership group, with over 10 years of previous experience in car sales. When his training role was at risk, he applied for several internal vacancies – mainly in sales – but was unsuccessful and then dismissed for redundancy. 

The tribunal accepted that the redundancy was genuine. But it still found the dismissal unfair. 

Why? Because the employer didn’t make a proper effort to help Mr Kennedy find another role.  

Key issues included

• He had to find and apply for vacancies like an external candidate 

• HR gave no help in identifying suitable roles 

• He was told that further sales role applications would be rejected as his motive in applying for them was questioned 

• Managers weren’t told he was at risk of redundancy 

• Some emails were sent to an address he couldn’t access 

• No real attempt was made to match him to vacancies 

The tribunal found that if the employer had acted fairly, Mr Kennedy likely would have found another role. He was awarded full compensation, with no Polkey deduction. 

HR takeaway

Supporting employees at risk of redundancy isn’t just good practice – it’s a legal requirement. That means more than just pointing to a vacancy list. You need to: 

• Communicate clearly and supportively 

• Help identify and explore suitable roles 

• Ensure decision-makers know who’s at risk 

• Make sure practical barriers (like email access) don’t get in the way 

In redundancy, how you handle the details can make or break a fair dismissal.

Asleep on the job – but still unfairly dismissed

It might seem obvious that falling asleep at work is a sackable offence. But a recent tribunal ruling reminds employers to look at the bigger picture before jumping to dismissal. 

In Okoro v Bidvest Noonan (UK) Ltd, Mr Okoro worked as a CCTV controller. He nodded off briefly while on duty and was later dismissed for gross misconduct. 

Mr Okoro brought an unfair dismissal claim. The tribunal agreed that the employer had followed the right steps when investigating and forming its belief that he’d fallen asleep (based on the Burchell test). But it still found the dismissal to be unfair. 

Why? Because dismissal wasn’t a reasonable response in the circumstances (Sainsbury’s v Hitt). The tribunal highlighted several key factors: 

• Mr Okoro had 16 years of unblemished service 

• The incident was brief – he was asleep for just 15 minutes 

• Falling asleep wasn’t listed as gross misconduct in the company’s disciplinary policy 

• There were no serious consequences from the incident 

He was awarded over £20,000 in compensation. 

What should HR take from this? 

Even when misconduct is proven, employers must consider the wider context before deciding to dismiss: 

• Check your policies: If you want to treat certain behaviour as gross misconduct, be clear in your disciplinary rules. 

• Consider the individual: Long service and a clean record weigh heavily against dismissal. 

• Assess the impact: Was the conduct deliberate? Did it cause real harm? 

Not every mistake justifies dismissal – and failing to recognise that could prove costly.

Think before you hire: Avoiding discrimination claims in recruitment

Fair recruitment is more than best practice – it’s a legal requirement. While many employers are familiar with the principles of equality in the workplace, it’s easy to overlook how far discrimination law stretches, especially when it comes to external job applicants. 

The legal framework

Under the Equality Act 2010, job applicants are protected from discrimination at all stages of recruitment. Sections 39 and 40 make it unlawful to discriminate, harass or victimise someone in arrangements for recruitment, including how you advertise roles, shortlist candidates, run interviews, and decide who to hire. 

This applies across all protected characteristics – including age, disability, sex, race, religion, and pregnancy. Importantly, the definition of “arrangements” in recruitment is broad. Discriminatory adverts, inaccessible application formats, or inflexible interview processes could all lead to claims. 

Practical examples 

• A disabled candidate may argue that not providing adjustments for an interview was discriminatory. 

• A Muslim applicant might claim indirect discrimination if an assessment day ignores dietary needs. 

• A pregnant candidate could claim she was rejected due to assumptions about her future availability. 

Even someone who hasn’t applied can claim that a discriminatory advert discouraged them, although they’d need to show they would have applied otherwise. 

Who’s liable? 

Claims can be brought against employers, employees, or recruitment agencies. Employers may also be vicariously liable for discriminatory actions by others – even if unintentional. For example, an agency that screens out older candidates could land both itself and the employer in legal trouble. 

How to stay compliant

• Train hiring managers on fair recruitment. 

• Instruct recruitment partners not to discriminate. 

• Make reasonable adjustments for disabled applicants. 

• Monitor language in adverts and interview questions. 

Exceptions and flexibility 

You can apply a “genuine occupational requirement” if a role needs someone with a particular characteristic – but this must be justifiable and essential for the job. 

Positive action is also lawful where there’s under-representation – for example, preferring one equally qualified candidate over another to improve diversity. But don’t select someone solely based on a protected characteristic if another applicant is better qualified. 

Clear processes, staff training, and thoughtful planning will help you recruit fairly and lawfully.

Volunteers in the Workplace 

Volunteers can be a valuable asset to many organisations – bringing flexibility, community engagement and cost-effective support. But if the relationship isn’t handled with care, it can lead to unexpected legal liabilities. Here are some key points HR professionals need to keep in mind when engaging volunteers: 

Risk of Employment Status

One of the most common legal pitfalls is unintentionally creating employment rights. If a volunteer is treated too much like a regular employee – for example, being given fixed hours, performance targets, or anything beyond genuine out-of-pocket expenses – a tribunal may decide they are a worker or even an employee. 

In Groom v Maritime and Coastguard Agency, the Employment Appeal Tribunal ruled that a volunteer coastguard became a ‘worker’ during periods where he could claim payments that went beyond expenses. The fact that he had to apply for this payment did not affect the outcome – the arrangement had the key ingredients of a contract. This case is a clear reminder that even small, well-intentioned payments can tip the balance and create employment rights. 

Other practices that could suggest employment status include mandatory training, requiring attendance at events, or using formal disciplinary procedures – all of which may imply mutual obligations typical of employment. 

To minimise risk: 

• Ensure volunteer roles are clearly optional and flexible. 

• Reimburse only actual expenses – avoid any form of additional payment. 

• Use language that sets out expectations, not requirements. 

• Keep documentation informal and avoid corporate HR processes. 

Remember, tribunals will look at the reality of the relationship, not just what your paperwork says. 

Legal rules still apply

Even if someone is a genuine volunteer, certain legal duties remain: 

• DBS checks may still be required for volunteers working with vulnerable groups. These checks are free but only apply if the individual meets strict criteria (e.g. no payment, not in training for a paid job). 

• Health and safety laws also apply. You must provide a safe environment, appropriate training, and necessary equipment. The Health and Safety Executive’s guidance emphasises that volunteers, while not employees, must still be protected from foreseeable risks.

Make sure volunteer roles are included in risk assessments, that your insurance covers volunteers, and that you maintain up-to-date records of their involvement. 

Volunteer Agreements

While not a legal requirement, a well-constructed volunteer agreement can be a useful tool. However, poor drafting can create legal problems – especially if it starts to resemble a contract of employment. 

When drafting an agreement: 

• Clearly outline the tasks and support available. 

• Use soft, non-binding language (‘we hope’, ‘suggested’) rather than obligations. 

• Avoid legal terms like ‘contract’ or ‘pay’ – stick to ‘reimbursement’ for expenses. 

• Make clear that the arrangement can be ended at any time by either party. 

• Include references to key policies, like health and safety or confidentiality. 

Handled thoughtfully, a volunteer agreement can support a productive relationship while keeping legal risk in check.

And finally, a claim of ‘one rule for them; one rule for everyone else’ was recently heard in the Birmingham Employment Tribunal. In Burns v Gitpod, the Claimant was sacked after getting drunk and allegedly falling asleep in a sauna on a work trip. In ongoing tribunal proceedings, she claimed unfair dismissal and discrimination. The Respondent dismissed the Claimant for performance issues and for having been drunk on the trip. The Claimant admitted to being drunk but claimed that she had been treated differently because she was a woman. She alleged that male managers on the same trip were also drunk but received no sanction. Bringing her claims to the tribunal, Ms Burns said: “My male colleagues were drinking alcohol/drunk at the off-site but I was the only one who was dismissed… One of my male colleagues behaved in a far more damaging way for both his own reputation and for Gitpod after consuming alcohol at the off-site.” 

The Claimant’s case that her dismissal was sex discriminatory hinges on an assertion that, as a woman, her drunken behaviour was viewed as setting a bad example whereas her male colleagues were lauded as “tech bros” for exactly the same behaviour. Although the case is currently ongoing and no finding has been made, the factual matrix serves as a reminder to employers to treat employees consistently and fairly when considering taking disciplinary action. Similar conduct should, unless it is able to be distinguished on coherent grounds, be treated similarly.