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29 October 2024

464: ‘Collective memory’ influenced prejudicial management decisions relating to employee who had made protected disclosure years earlier

In First Greater Western Ltd v Moussa, the EAT held that an employer was liable for victimising an employee many years after his protected disclosures and acts, even where decision-makers did not have personal knowledge of that history. 

Mr Moussa worked as a station gateline operative for First Greater Western. In 2012, he was dismissed after raising a grievance relating to the appointment of a new health and safety representative. In 2013, he brought unfair dismissal and discrimination claims. These claims were settled in 2014, and Mr Moussa was reinstated and transferred to a different station. A further incident in 2018 led to Mr Moussa’s suspension and disciplinary proceedings. He then brought Tribunal proceedings alleging that he had been subject to detriments for making protected disclosures in 2012 and victimised for the protected act of bringing a Tribunal claim in 2013.

The Employment Tribunal held that First Greater Western had subjected Mr Moussa to nine detriments, including suspension, undertaking an inadequate and biased investigation, and adding extra allegations at the end of the investigation. The Tribunal also held that, despite the passage of time, these detriments were causally linked to his protected acts and disclosures. Although claims against two individuals were dismissed, the Tribunal held that there was a ‘collective memory’ within HR and certain managers of Mr Moussa being an ‘agitator and malign influence.’ This had led to a general negative and prejudicial view of Mr Moussa, which permeated the employer’s approach towards him. 

On appeal, the EAT upheld the Tribunal’s findings, agreeing that a ‘collective memory’ within an organisation can influence decisions and lead to victimisation even if the managers making final decisions do not have personal knowledge of the detailed history. 

This case highlights the danger of perpetuating an institutional culture of bias and ill-will towards an employee who has made protected disclosures or carried out a protected act, such as bringing Tribunal proceedings. As this case illustrates, employers can face liability for whistleblowing and victimisation claims even where alleged detriments have occurred many years after the protected acts or disclosures. Safeguards should be put in place to ensure that managers, HR, and decision-makers follow performance and disciplinary procedures fairly and objectively and that any decisions and actions are properly documented and reasoned. 

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