Employer held liable for victimisation where decision maker was influenced by others
Wednesday 31st July 2024
The Employment Appeal Tribunal (EAT) recently considered whether an employer can be held liable for whistleblowing detriment, where the decision maker had no personal knowledge of the employee’s protected disclosures made several years before his dismissal, but was influenced by others who did know about the complaint.
Facts & decision
In First Greater Western Ltd v Moussa, Mr Moussa was subject to disciplinary actions. He was dismissed.
Mr Moussa contended that he was subjected to detriments because of protected disclosures he had made 7 years previously. He alleged that there was a general management culture of unwarranted hostility towards him, labelling him an ‘agitator and a malign influence’. Mr Moussa drew comparison to his colleague, who was also subject to a disciplinary process resulting from the same incident.
Although the disciplinary officer did not have personal knowledge of his whistleblowing acts, Mr Moussa alleged that the dismissal was attributed to his managers’ ‘collective memory’ of his past dealings with the respondent, which permeated the approach of HR and its advice to the decision maker.
The EAT supported the Employment Tribunal’s findings that there was a prejudicial ‘collective memory’ against Mr Moussa. The Tribunal found that this was evident in HR’s interactions with him, as well as how he was discussed within the management team. The EAT agreed that there were numerous instances of unfair and less favourable treatment, which were linked to Mr Moussa’s protected disclosures.
Comment
The latest EAT decision marks a departure from its previous approach to claims of whistleblowing detriment and victimisation.
It is now not necessary for the decision maker to have personal knowledge of the claimant’s protected acts – influence on the decision maker by prejudiced management could be attributed to the employer generally, resulting in them being held directly liable.
This ruling highlights the importance of workplace culture, and that detriment can arise from organisational bias and stereotypes within the workplace.
For details on how to carry out impartial disciplinary processes that are procedurally fair, please contact a member of the Employment team.
