Employer's 'collective memory' influenced decision-making in victimisation claim
A recent decision has confirmed that employers can be liable for victimising employees who previously made protected disclosures, even though the decision-makers were not personally aware of the history.
Whilst the case concerns a rail company, it clearly could have implications within the higher education sector.
What were the facts of the case?
In the case of First Greater Western Ltd v Moussa, Mr Moussa was a gate line operative at Ealing Broadway Station, employed by First Greater Western.
In 2012, Mr Moussa raised a written complaint and grievance to Mr Haynes, the station manager. Following this, Mr Moussa was dismissed. Mr Moussa brought a claim for unfair dismissal and discrimination in 2013. The parties reached a settlement and Mr Moussa was reinstated in 2014 and transferred to Paddington Station.
In 2018, Mr Moussa was on duty with a colleague, Mr Larkin, when they called the police to deal with an alleged assault on Mr Larkin by a passenger. However, the station police commander advised that CCTV suggested there was no such assault. On advice from HR, both Mr Moussa and Mr Larkin were suspended pending an investigation.
On advice from HR, the investigator did not obtain written statements from employees at the scene. A further allegation was also added that Mr Moussa had assaulted a member of the public. The employer concluded that Mr Moussa would face charges of assaulting a member of the public, putting himself at risk despite there being no evidence of threat and providing a false statement.
Tribunal claim
Mr Moussa issued Tribunal proceedings against his employer for victimisation for having done a protected act (namely for bringing his Tribunal claim in 2013) and protected disclosure detriment (following the disclosures made in 2012). At Tribunal, the respondent accepted that Mr Moussa had done a protected act, and the Tribunal found that the 2012 disclosures were protected.
The Tribunal's findings were that the employer had subjected Mr Moussa to 9 detriments including undertaking a biased investigation. The Tribunal found that in most cases, the detriment was because of the protected act and protected disclosures made.
The Tribunal held that whilst there may not have been individual knowledge of the incidents in 2012 and 2013, there was a collective memory within the respondent which was prejudicial to Mr Moussa. This had permeated the approach of HR and those advised by HR. The underlying negative attitude towards Mr Moussa stemmed from the 2012 disclosure and 2013 protected act and influenced the decision-making against him.
The employer appealed to the EAT.
EAT decision
The EAT dismissed the appeal and supported the Tribunal's findings. The concept of 'collective memory' within an organisation can influence decisions and lead to victimisation, even if the individual decision-makers have no personal knowledge of the history.
Learning points for employers
This case is likely to have some useful learning points for higher education employers, most of whom have relatively large work forces with relatively long periods of continuous employment.
It is important for employers in higher education to be aware that a culture of 'ill will' against an employee who has previously made protected disclosures or carried out a protected act could lead to future liability in the event of a further incident. It is important to make sure that staff do not have any prejudice and that decision-making is not influenced by collective memory. It is crucial to ensure that HR departments and decision-makers handle cases with utmost fairness and avoid any biases based on past protected activities.