Karen Plumbley-JonesOur case law update this month includes Hendy Group Ltd v Kennedy, which dealt with an unfair dismissal where the employer had failed to look for suitable alternative employment for an employee in a redundancy situation. Kokomane v Boots Management Services Ltd looked at whether an employee had done a “protected act” for whistleblowing purposes when making an oblique complaint of discrimination during a grievance investigation. In Handa v The Station Hotel (Newcastle) Ltd, the employment tribunal considered whether two external HR consultants were acting as the employer’s agents when they investigated a grievance and conducted a disciplinary hearing.
Hendy Group Ltd v Kennedy [2024] EAT 106
Hendy is a car dealership. Mr Kennedy, who had extensive experience in the motor trade, was based at Hendy’s training academy and was involved in presenting training to all of the sales teams. He was made redundant in 2020 due to the COVID-19 pandemic. Although he accepted the redundancy situation he claimed unfair dismissal, arguing that Hendy did not adequately consider alternative employment.
The Employment Tribunal (ET) found that Hendy failed in its obligation to avoid Mr Kennedy’s dismissal, ruling it unfair. The ET said Mr Kennedy had done everything he possibly could have done to secure an alternative role. It found that Hendy did not offer Mr Kennedy any help in securing alternative employment in any of the dismissal paperwork. He had to return his company laptop shortly after being given notice and therefore could not see emails from the HR team or access the company intranet. His situation made it difficult for him to find out about vacancies or apply for them and he was actively blocked from securing a sales role. Hendy appealed, arguing that the ET applied the wrong test and substituted its own view on the dismissal. The Employment Appeal Tribunal (EAT) upheld the ET’s decision.
Kokomane v Boots Management Services Ltd [2025] EAT 38
Ms Kokomane was the only full-time, non-white member of staff employed at a Boots store. She raised a grievance, stating she had been treated differently from other staff and had been bullied by a colleague who accused her of shouting. Ms Kokomane’s grievance letter did not allege that she had been discriminated against because of her race and did not attribute her colleague’s treatment towards her as being due to race. However, the notes of the grievance hearing stated that Ms Kokomane had mentioned that black women are known for being loud. While it was not expressed directly, the allegation was one of stereotyping and Ms Kokomane repeated this during her grievance appeal. Boots was negatively impacted during the COVID-19 pandemic and made Ms Kokomane redundant in 2021. She brought a claim for unfair dismissal alleging that her redundancy selection and dismissal amounted to victimisation because she had previously brought a grievance, which was a protected act.
The ET dismissed the victimisation claim and held that Ms Kokomane had not done a protected act because she did not mention race or discrimination during her grievance hearing or appeal. Ms Kokomane appealed. The EAT allowed her appeal and held that, while the ET is not required to assume that any allegations of difference in treatment are about race solely because the employee is the only black employee, the context of the facts are important. Ms Kokomane complained about being treated differently and was accused of shouting, and the grievance hearing and internal appeal notes stated that shouting may be connected to black women in a negative way. The EAT said the ET did not appear to consider the context in sufficient detail when concluding that Ms Kokomane had not done a protected act and it remitted the case back to the ET to consider that point.
Handa v The Station Hotel (Newcastle) Ltd and others [2025] EAT 62
Mr Handa was an employee and director of a holding company, Station, for a family-run hotels business. He made allegations of financial impropriety concerning the running of the business, which he claimed were protected disclosures. Several employees later raised grievances alleging that Mr Handa had bullied and harassed them. Station instructed solicitors and an HR consultant was retained by them to conduct the grievance investigations. The HR consultant found two of the grievances to be substantiated and recommended that those matters proceed to a disciplinary hearing. Another HR consultant was then retained to conduct the disciplinary hearing. The second HR consultant corresponded with Station’s solicitors, following which the second HR consultant amended their draft report to include a statement to the effect that Station would be justified in dismissing Mr Handa for gross misconduct. He was then suspended, removed as a director of Station and dismissed without notice. Mr Handa brought claims against Station for ordinary unfair dismissal and automatic unfair dismissal for whistleblowing. He also brought claims against the two HR consultants, alleging that they were Station’s agents and subjected him to detrimental treatment, which was dismissal for whistleblowing.
At a preliminary hearing, the ET struck out Mr Handa’s claims against the two HR consultants, concluding that they had no reasonable prospects of success. Mr Handa appealed. The EAT dismissed his appeal. The EAT said the ET had erred in concluding that the HR consultants could not be considered as agents of the company when carrying out the grievance and disciplinary processes, but there was no arguable basis on which they could be held liable as the company’s agents for the alleged detriment in this case. It was Station’s decision to dismiss Mr Handa; a decision to dismiss was not within the consultants’ remit.
