The Employment Appeal Tribunal (EAT) has held in First Greater Western Ltd v Moussa [2024] that an employer victimised an employee because he had done a protected act, and subjected him to a detriment on the ground that he had made protected disclosures six years previously.
Mr Moussa is employed by First Greater Western Ltd (FGW). In 2012 he made a written complaint about the appointment of a new health and safety representative. He and some others also complained about their manager who they alleged had threatened and abused them (the 2012 disclosures). When the dispute escalated Mr Moussa and three others were dismissed. Mr Moussa brought tribunal claims in 2013 for unfair dismissal and discrimination which were ultimately settled, and he was reinstated and transferred to a new station.
In February 2018 Mr Moussa and his colleague, Mr Larkin, called the police to deal with an alleged assault on Mr Larkin. When the CCTV footage of the incident was reviewed, it was established that it didn't happen and both men were suspended pending further investigation. An investigator who lacked experience, Mr White, was appointed to the case, and, during the investigation, he was supported by the HR team.
During the investigation Mr Larkin retracted his statement to the police, apologised and returned to work. Mr Moussa was invited to a disciplinary. He was not told that the allegations made against him were not gross misconduct allegations; he also remained on suspension. Mr Moussa's solicitors raised a grievance. The HR representative involved in assisting Mr White told colleagues that Mr Moussa raised various complaints twice a year. She also said that the management team had explained that Mr Moussa was a confident individual who had a strong influence on his colleagues. At the disciplinary hearing Mr Moussa was issued with a first written warning and the other allegations were dismissed. He brought a claim that he had suffered a detriment as a result of his protected act.
The tribunal found that bringing the 2013 tribunal claim was a protected act by Mr Moussa and the 2012 disclosures were protected disclosures. The tribunal found that FGW had subjected Mr Moussa to various detriments, including accusing him of making a false statement concerning the alleged assault incident, suspending him, and undertaking an inadequate and biased investigation. These had been done because of the protected act and the 2012 disclosures. Mr Moussa had joined Mr White to the claim against FGW, but the tribunal concluded that, while the investigation had its flaws, it was not possible to conclude that these were as a result of the protected act or protected disclosures as there was no evidence to suggest that Mr White was aware of these at the time. However, in upholding the claims against FGW, the tribunal found that there was a "collective memory" within FGW which was prejudicial to Mr Moussa and which had permeated the approach of HR, and that the various examples of unfairness and less favourable treatment were the result of an underlying negative attitude towards Mr Moussa which was shared and understood by management.
On appeal FGW argued that the decision to impute liability to it had not been open to the tribunal and, the tribunal should have found that a decision-maker (Mr White) who did not have personal knowledge of a protected disclosure could not be materially influenced by it. It argued that it could not be said that the 2012 disclosures and 2013 tribunal proceedings were generally known to management.
The EAT dismissed the appeal. It found that employers can be liable in cases where individual employees have not been. This meant that while neither Mr White nor the claimant's manager were liable for victimising the claimant, the overall management culture which was exhibited in the malign influence of the HR representative was enough to make FGW directly liable for the detriment experienced by Mr Moussa.
Take note: It is clear from the decision in Moussa that an employee can be victimised following a protected disclosure even where the decision-maker is not aware of the disclosure but is influenced by third parties who are. Here the overall management culture led the employer to be directly responsible for the treatment suffered by employee.
