Employment Appeal Tribunal Ruling: Victimisation for Protected Disclosures
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Understanding Victimisation in Employment Law: The First Greater Western Ltd v Moussa Case
The Employment Appeal Tribunal (EAT) recently addressed a significant question in employment law: whether an employer had victimised an employee for making protected disclosures six years earlier. The case, First Greater Western Ltd v Moussa [2024] EAT 82, provides crucial insights for litigants in person navigating similar legal challenges.
Case Background: First Greater Western Ltd v Moussa
The claimant, M, a gateline operative, raised a written complaint and a collective grievance in 2012 against a local union leader at Ealing Broadway station. Following this, M was dismissed and subsequently brought claims for unfair dismissal and discrimination against his employer, First Greater Western (FGW). These claims were settled, leading to his reinstatement and transfer to Paddington station.
In 2018, M and a colleague reported an alleged passenger assault to the police, which led to an investigation into M’s conduct. Following this investigation, M faced disciplinary proceedings and received a first written warning. Concurrently, M initiated tribunal proceedings against FGW and two of its employees, alleging victimisation for his 2013 discrimination claim and detriment for his 2012 protected disclosure.
Tribunal Findings: Detriment and Victimisation
The employment tribunal identified nine detriments M suffered, including suspension and biased investigation procedures. The tribunal concluded these detriments were linked to his 2013 discrimination claim and his 2012 protected disclosure. It found a "received wisdom" and "collective memory" within FGW that prejudiced M, permeating the HR department and influencing management's approach. Despite dismissing claims against individual respondents, the tribunal held FGW liable.
FGW's Appeal and EAT's Decision
FGW appealed, arguing that the tribunal failed to specify who within the company knew about the previous disclosures and tribunal proceedings. The EAT dismissed this appeal, emphasizing that the statutory provisions were clear. It was a factual determination for the tribunal whether the detriments were inflicted because of the protected act or disclosure. The EAT upheld the tribunal’s findings that linked M’s detrimental treatment in 2018 to the institutional ill-will stemming from his earlier actions.
Key Takeaways for Litigants in Person
This case underscores the complexities of causation in victimisation claims and the circumstances under which an employer is liable for its staff's actions. Even if those involved in disciplinary actions were unaware of past events, a "collective memory" or negative institutional attitude can suffice to establish employer liability. Employers must ensure that disciplinary investigations and hearings are impartial, treating employees based on current facts without bias from historical grievances.
The Importance of Impartial Treatment
The First Greater Western Ltd v Moussa case illustrates the risks for employers in handling employees with a history of discrimination claims or protected disclosures. It highlights the necessity of impartial treatment and the potential consequences of a prejudiced institutional memory. For litigants in person, understanding these dynamics is crucial in navigating employment disputes and ensuring fair treatment in the workplace.
By examining this case, employees and employers alike can better comprehend the legal landscape regarding victimisation and protected disclosures, reinforcing the importance of impartiality and fairness in employment practices.
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