This month’s roundup highlights several key decisions with important implications. When considering grievances, it’s useful to consider the wider context of the situation even if a person doesn’t explicitly allege race discrimination. While external HR consultants may act as agents of an employer during investigations, they are not co-liable for dismissal decisions. Vicarious liability for torts committed by employees before a TUPE transfer does not pass to the transferee. Lastly, we have new guidance on how tribunals should handle requests for information, emphasizing the need for a principled and detailed approach in assessing relevance and necessity.
- Race Discrimination: Tribunals should consider wider context when considering ‘protected acts’
- Agency: HR consultants not liable as agents for employer’s decision to dismiss
- TUPE: Vicarious liability for acts of employees does not transfer under TUPE
- Disclosure: EAT gives guidance on approach to applications for provision of information
Race Discrimination: Tribunals should consider wider context when considering ‘protected acts’
In Kokomane v Boots Management Services [2025] EAT 38, the Claimant, a young black woman, brought a claim of victimisation against the Respondent. The ‘protected acts’ that were alleged included an initial grievance where she claimed she had been treated differently to her colleagues related to an allegation of shouting, a later grievance a few months later claiming that nothing had been done about her original grievance and thirdly alleged bullying. However, her claim did not expressly state that she felt that the difference in treatment was due to her race, nor did she suggest that she attributed the Respondent’s treatment of her to her race. The sole ground of appeal was that the ET had erred in law in its decision that the Claimant’s grievances and grievance hearing did not amount to protected acts.
A ‘protected act’ means taking action related to discrimination law. This includes: making a complaint of discrimination or harassment, supporting someone else’s complaint and gathering information that might lead to a complaint.
The EAT held that the tribunal had used too narrow a definition of what could amount to a protected act and did not analyse in sufficient detail the context in which the complaint relied upon as a protected act was made. The allegation relied on as a ‘protected act’ need not state explicitly that an act of discrimination has occurred. It is only necessary to assert facts which are capable in law of amounting to an act of discrimination. In particular, part of the context is the way in which the Respondent would have understood the complaint. Here, where the employer would know that the Claimant was the only black employee and the complaint was specifically about difference in treatment, those were matters that should form part of the evidential consideration. It was not clear that in dealing with the Claimant’s grievance and appeal hearings the tribunal approached that evidence with that contextual approach in mind.
The advice given was, that if the protected act is not a straightforward express discrimination allegation, tribunals should ask themselves the question: What would the Respondent have understood the complaint to mean from the information provided by the Claimant as part of her complaint? To consider it this way means that factors which were known to the Respondent would also be included, and thus the fact that the Claimant was the only black employee, that her grievance letter alleged difference in treatment, and the discussions at the grievance meeting which included negative reference to shouting as a black women were pertinent to the consideration of the protected act.
Agency: HR consultants not liable as agents for employer’s decision to dismiss
In Handa v Station Hotel (Newcastle) Ltd and others [2025] EWHC 538 (Admin), the EAT has held that a tribunal erred when it held that it was not arguable that two HR consultants, one appointed to undertake an investigation into grievances and the other to conduct a disciplinary hearing, were acting as an employer’s agents when undertaking those functions.
The EAT did not see why someone retained to carry out an employment-related procedure, such as a grievance or disciplinary investigation, could not be regarded as the employer’s agent while doing so. The fact that they were an external appointee, who carried out their duties (including writing any report) independently, would not preclude them from being regarded as the employer’s agent in relation to their conduct while carrying out their remits.
However, the EAT went on to find that there was no arguable basis for a conclusion that, because the employer relied on the investigation processes carried out by the HR consultants in support of its case that it had fairly dismissed an employee, those HR consultants were co-liable for the dismissal as the employer’s agents. Similarly, the fact that the HR consultants’ activities and reports were essential links in the chain of causation leading to the decision to dismiss could not arguably provide grounds for imposing liability on them for the dismissal decision, on the basis of agency.
TUPE: Vicarious liability for acts of employees does not transfer under TUPE
In ABC v Huntercombe (No 12) Ltd and others [2025] EWHC 1000 (KB), the High Court has held that a transferor’s vicarious liability for torts committed by its employees prior to a transfer does not pass to the transferee under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE).
The Claimant sought damages for injuries suffered while she was an in-patient at a hospital owned and operated by the first defendant. The Claimant argued that the First Defendant was vicariously liable for the acts of two of its employees. However, a subsequent TUPE transfer of the First Defendant’s business led to those employees becoming employed by the Second Defendant. The court was asked to determine, as a preliminary issue, whether any vicarious liability of the First Defendant to the Claimant for the alleged torts of its employees transferred to the Second Defendant under TUPE. If it found that vicarious liability did transfer, the court was also asked whether any indemnity that the First Defendant may have under its public liability insurance in respect of the claim also transferred.
On review of relevant authorities and having reminded itself that TUPE is intended to protect employees in the event of a change of employer (in particular, to ensure that their rights are safeguarded), the court held that if a transferor’s liability is to transfer, the connection between the liability and the contract must be direct, in the sense of being a liability the transferor has to an employee. If a transferor has a vested (or contingent) right against a third party which arises purely because of such a liability, that right would also transfer. In this case, any liability of the First Defendant was owed to the Claimant, not to its employees. The relevant direct liability was that of the employees to the Claimant. It followed that the required connection was too remote. If the court was wrong, and liability transferred from the First to the Second Defendant, the First Defendant’s right to claim on an insurance policy would also have transferred.
In reaching its decision, the court held that Doane v Wimbledon Football Club [2007] 12 WLUK 2, the only case to hold that the vicarious liability of a transferor transferred because it arose in connection with the transferred contract, should not be followed.
Disclosure: EAT gives guidance on approach to applications for provision of information
In Bari v Richmond and Wandsworth Councils [2025] EAT 54, the EAT has held that an employment tribunal did not take a sufficiently principled and reasoned approach when considering and deciding a claimant’s application for the provision of information.
The claimant, Mr Bari, is disabled by reason of arthritis and brought claims under the Equality Act 2010. During tribunal proceedings, he emailed the respondents requesting answers to eight detailed questions regarding disabled employees and adjustments made for them. Many of the questions had numerous parts to them. The respondents resisted responding to the questions, and Mr Bari applied to the tribunal for an order requiring the provision of the requested information, which he stated would assist the tribunal. He subsequently wrote that he was applying for an order for specific disclosure or inspection, although he did not request sight of any particular documents. An employment judge refused his applications, noting that it was unclear how the information would assist the tribunal. Mr Bari appealed.
The EAT considered the relevant authorities at length. It observed that the core test is whether disclosure is necessary for fairly disposing of the proceedings. The relevance test is a facet of that overall test and a logical starting place when considering an application. A tribunal must consider relevance in the sense of something being likely to assist or detract from either party’s case, or an issue in the case. A request for information or answers to questions is conceptually distinct from a request for disclosure of documents. However, recent authorities (for example, Essex County Council v Jarrett [2015] UKEAT/0087/15) have confirmed that tribunals can order the provision of information. When considering such applications, a tribunal must take a principled and reasoned approach in the same way as it would for an application for disclosure of documents. That said, when a claimant’s request concerns “pure information”, rather than disclosure of an existing document, the task involved in complying with any order may be practically very different (for example, considerable work may be needed to collate the information).
In Mr Bari’s case, the tribunal had erred in seemingly adopting the approach initially articulated by him (namely, whether disclosure of the information would assist the tribunal). It should have provided a sufficiently reasoned decision indicating whether his application was granted or refused by reference to the three broad groups his questions fell into, including consideration of the information’s relevance to each of the claims he had brought.
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