The long tail of liability for whistleblowing detriment
27 June 2024
In this case, the Employment Appeal Tribunal (EAT) considered the question of whether an employer had victimised an employee and subjected him to a detriment for making protected disclosures six years previously.
First Greater Western Ltd v Moussa [2024] EAT 82
Facts of the case
The claimant (M) in this case, a ‘gateline operative’, supervises passengers as they pass through ticket barriers at train stations. In 2012, he raised a written complaint and a collective grievance about a local union leader’s conduct to the station manager at Ealing Broadway station. M was eventually dismissed and subsequently (in 2013) brought claims against his employer, First Greater Western (FGW) for unfair dismissal and discrimination, which were both settled. He was reinstated and transferred to work at Paddington station.
In 2018, M’s conduct was the subject of an investigation after he and a colleague made a complaint to the police alleging that a passenger had assaulted the colleague. M was subjected to disciplinary proceedings following the investigation, and he was eventually issued with a first written warning relating to the incident with the passenger. In the meantime, he had issued tribunal proceedings against FGW and two employees of FGW, alleging victimisation for having done a protected act (his 2013 discrimination claim) and alleging detriment for making a protected disclosure (his 2012 complaint about the union leader).
The employment tribunal found that M had been subjected to nine separate detriments, including his suspension, the “inadequate and biased” investigation and certain aspects of the disciplinary procedure. It held that the detriments were because of the protected act (his 2013 discrimination claim) and on the grounds of his 2012 disclosures, which the tribunal held to be protected disclosures.
The tribunal found that within FGW, there was a “received wisdom” and “collective memory” prejudicial to M which had permeated the approach of HR and, in turn, those advised by HR. The “myriad” examples of unfairness and less favourable treatment could not simply be explained as a string of unfortunate errors; there was an “underlying negative attitude” towards M that was shared and understood by management. The tribunal dismissed the claims against the named individual respondents but found FGW to be liable.
FGW appealed against the tribunal’s decision to impute liability to the employer on the basis that the previous disclosures and the earlier tribunal proceedings were not generally known to the company’s management. It argued that the tribunal should have made clear findings about who knew what, and when, before finding the employer liable for victimisation and unlawful detriment.
EAT decision
The EAT has dismissed FGW’s appeal. The starting point in such a case has to be the statutory provisions. The question of whether a detriment was inflicted ‘because’ the claimant had done a protected act, or ‘on the ground’ that the claimant had made a protected disclosure, was a question of fact for the tribunal to determine. The EAT was satisfied that the tribunal had made clear findings to link the 2012 disclosures and the 2013 protected acts with the detrimental treatment suffered by M in 2018, as a result of the institutional ill-will that FGW bore him.
The Birketts view
The case law on causation (what was the cause of the employee’s treatment?) in these types of claims, and the circumstances when an employer is liable for decisions made by individual members of staff, is highly complex.
Even though in this case, many of those involved in the employee’s investigation and disciplinary proceedings had no direct knowledge of the events of 2012 and 2013, the tribunal had found there to be a “collective memory” that was prejudicial to the employee. This was “personified and perpetrated” by a member of the employer’s HR department, who the tribunal found to have demonised him and encouraged others to treat him unfairly. This was sufficient to make the employer liable for the actions of its employees.
This case illustrates the risks for employers in subjecting an employee to what could be framed as detrimental treatment, if they have previous history of discrimination claims or allegations, or disclosures that are potentially protected disclosures, even if many years (in this case, six) have passed. It shows the importance of drawing a line under previous events and treating individual employees based on the present facts (subject to any ‘live’ warnings that might be applicable), rather than opinions being coloured by past experiences. It is particularly important to ensure that those undertaking disciplinary investigations and chairing hearings are fully impartial.
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Liz Stevens
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2024.