In this case the Employment Appeal Tribunal (EAT) confirmed that an employer can be liable for victimisation and whistleblowing detriment inflicted on an employee years after the protected acts or disclosures were made.
Facts
Mr Moussa (M) was employed by First Great Western Ltd (FGW) as a gateline operative from 2006, initially at Ealing station. In 2012 a dispute arose when a new health and safety representative was appointed at Ealing Station, an appointment supported by a local union leader. M and others objected to the appointment in a grievance to the station manager, Mr Haynes (H), believing the correct process had not been followed (the 2012 disclosures). The dispute escalated and M and three others were dismissed. In 2013, M brought employment tribunal claims against FGW for unfair dismissal and discrimination (2013 protected act). H was named as a respondent. In 2014, the claims were settled, M was reinstated and transferred to Paddington station. In 2016, H became the station manager at Paddington.
In February 2018, M was on duty with a colleague, Mr Larkin (L), when they called the police to deal with an alleged assault on L. Both completed an "assault report form". However, the station police commander advised a manager at FGW, that CCTV suggested there was no assault.
FGW suspended both men pending an investigation. The investigation was conducted by Mr White (W), who lacked experience and was advised by Ms Czechowicz (C ) from FGW's HR department. On review of the papers, W added a further allegation that M had assaulted or physically restrained a member of the public, considering it to be "quite clear" that he had done so.
On 22 March 2018, L retracted his formal statement to the police, apologised for his part in the matter and was allowed to return to work. He did not blame M for the incident.
On 27 April 2018, W wrote to M advising that he would face three charges: laying hands on a customer unnecessarily, putting himself at risk despite there being no evidence of a threat from the customer and providing a false statement. M was not advised that these were not regarded as potential gross misconduct and, contrary to FGW's disciplinary rules which reserved suspension for gross misconduct cases, he remained suspended. M was then signed off sick.
On 6 September 2018, M's solicitors raised a grievance with FGW and they responded with a cursory acknowledgement, not engaging with the substance of the points.
M issued tribunal proceedings against FGW, H and W for victimisation for having done a protected act and for protected disclosure detriment.
On 3 April 2019, the disciplinary hearing was conducted by a different manager at FGW, who dismissed the allegation of making a false statement and, after viewing the CCTV, did not uphold the allegation of laying hands on a customer unnecessarily. He gave M a first written warning for over-zealously putting himself at risk.
The employment tribunal considered the grievance and the internal correspondence that followed. The grievance had been passed to C who emailed her colleagues. The tribunal found the language C used in the email “trivialises M’s concerns”. Further, C mentioned that the “management team called me”, explaining that “L can be easily led and that M is a confident individual who might have a strong influence on individuals such as L”. The tribunal later found the most likely explanation of that observation was that certain managers: “fed back to C, in a way that was seriously prejudicial to the claimant. … this shows a received wisdom and collective memory relating to the claimant as being an agitator and a malign influence which we find dates back to the events of 2012 and 2013.”
The employment tribunal found in favour of M, ruling that FGW had subjected him to detriments on the grounds of the protected disclosures and acts in 2012 and 2013. The tribunal held that FGW had perpetuated a culture of prejudice and ill will towards M, influencing the decision maker to treat him unfairly in the 2018 investigation. The employment tribunal also found that the detriments were causally linked to the protected acts and disclosures, despite the passage of time. It dismissed the claims against the individual respondents. FGW appealed the outcome.
The EAT dismissed the appeal, finding that the employment tribunal's decision was sound and adequately reasoned - there was nothing to bar the tribunal's conclusions. There was a danger of over-thinking the issue of causation. Whether a detriment was inflicted "because" the claimant did a protected act or "on the ground that" the claimant made a protected disclosure was a matter of fact for the tribunal.
What does this mean for employers?
The case illustrates that employers can face liability for whistleblowing and victimisation claims even if the alleged detriments occur long after the protected acts or disclosures. Employers should be aware of the potential for such claims and ensure that they have robust policies and procedures to prevent and address any unlawful treatment of whistleblowers or claimants.
Tribunals have historically taken an inconsistent approach to determining whether a detriment was "on the ground that" a protected disclosure was made in cases where a person who knows about the disclosure causes a whistleblower to be subjected to a detriment by an "innocent" individual who does not know about the disclosure.
Employers should ensure that they have clear and objective evidence to justify any disciplinary or performance-related decisions, and that they do not rely on subjective or tainted views of the employees involved.
