The question of an employer’s liability for detriment related to whistleblowing under section 47B of the Employment Rights Act 1996 (ERA 1996) is becoming increasingly complex, with varying judicial decisions muddying the waters.
This issue was recently considered again by the Employment Appeal Tribunal (EAT) in First Greater Western Ltd v. Moussa (2024). In this case, it was held that an employer may be liable for victimisation and detriment suffered by an employee following a protected disclosure, even if the decision-maker was unaware of the disclosure, but influenced by others who were.
Background
The Claimant, Mr Moussa, worked as a gate line operative for First Greater Western (FGW), supervising passengers passing through ticket barriers. Mr Moussa contended that he suffered adverse treatment from various managers at FGW. He attributed this treatment to disclosures he made seven years previously which, at the time, had led to his dismissal and then subsequent reinstatement as a result of Employment Tribunal (ET) proceedings.
Seven years later, Mr Moussa claimed to have been the victim of detrimental treatment in the form of an investigation and disciplinary process. He alleged there was unwarranted hostility, pervasive negative bias from the management team and a difference in his treatment to that of a colleague who was also subject to a disciplinary process resulting from the same incident. According to the Claimant, this all stemmed from the managers’ “collective memory” of his history with the company. Notably, however, one of Mr Moussa’s managers accused of subjecting him to detriments was reportedly unaware of his past issues.
ET
FGW accepted that Mr Moussa’s filing of an ET claim in 2013 was a protected act. The ET determined that disclosures he made in 2012 were also protected disclosures. The ET upheld the claim under section 47B, holding that Mr Moussa had been subjected to nine detriments by FGW “on the grounds of the protected disclosures and protected acts”.
The ET found that, within FGW, a prejudicial “collective memory” existed against Mr Moussa. This bias was evident in Mr Moussa’s interactions with HR and the way his actions were perceived and discussed within the organisation, leading to multiple instances of unfair and less favourable treatment. These negative outcomes were linked to Mr Moussa’s previous protected act and disclosures. Consequently, the ET upheld the claims made.
EAT
The EAT dismissed FGW’s appeal. It emphasised the complexity of determining causation, particularly regarding dismissals, detriments, discrimination or victimisation. The EAT highlighted the risk of overcomplicating causation and the difficulty in applying a one-size-fits-all approach due to the numerous variables involved in whistleblowing cases.
The current case involved a mix of manipulation, organisational culture and tainted information, where Mr Moussa faced detrimental treatment due to hostility from FGW management stemming from his protected acts and disclosures. The EAT found that this institutional ill will, rather than actions by individuals at FGW, led to Mr Moussa’s unfair treatment.
The EAT supported the ET’s approach, which focused on the statutory language and the facts of the case, rather than trying to align with past cases. It upheld the ET’s findings and reasoning, noting that the case exemplified the direct liability of the employer for whistleblowing detriment under section 47B(1) of the ERA 1996, which exists independently of vicarious liability. The EAT questioned whether previous judgments would exclude cases like Mr Moussa’s from its scope and reaffirmed the principle of direct employer liability for whistleblowing detriment without the need for a specific individual’s motivation to be identified.
Comments This case highlights the significant impact of workplace culture on employee treatment, demonstrating that detriment or dismissal can arise not just from individual malice but from ingrained organisational attitudes. The concept of “collective memory” was key, leading to the employer’s direct liability for Mr Moussa’s mistreatment. It serves as a cautionary tale for employers to remain vigilant against the perpetuation of negative stereotypes within their organisation. Negative labels, even when not intended maliciously, can contribute to a biased view of an employee, potentially affecting impartial judgment and leading to unintentional victimisation.
