First Greater Western Limited v Ahmed Moses Moussa

The Employment Appeal Tribunal dismissed FGW's appeal against a tribunal finding that FGW subjected the claimant to detriments because he had made protected disclosures in 2012 and had done protected acts in 2013 (whistleblowing detriment: s.47B Employment Rights Act 1996; victimisation: s.27 Equality Act 2010). The tribunal found FGW liable (but exonerated two individual managers who were sued) because an institutional, prejudicial "collective memory" within management, in particular perpetuated by an HR officer, had materially influenced the handling of a disciplinary process in 2018-19. The EAT held that the tribunal's findings of fact were adequately reasoned and not perverse, that there was no procedural unfairness from the tribunal's description of a "management lore", and that attribution of responsibility to the employer on the facts was lawful in this case.

This appeal concerned whistleblowing detriment and victimisation claims brought by a long‑serving employee who alleged that poor treatment during a disciplinary process in 2018-19 was causally linked to protected disclosures and protected acts from 2012-13.

Background and parties:

• The claimant had earlier been dismissed in 2013 after disputes at Ealing station, brought tribunal proceedings which were settled in 2014 with reinstatement and transfer to Paddington.
• In February 2018 an incident at Paddington led to an investigation, suspension and later disciplinary proceedings; the claimant alleged a series of detriments arising from the process.
• The claims below were made against FGW (the employer) and two managers, Mr Dean Haynes and Mr Billy White; the tribunal found for the claimant against FGW but dismissed claims against the two individuals.

Nature of the claim / relief sought: The claimant pursued claims of detriment for protected disclosures under s.47B ERA 1996 and victimisation for protected acts under s.27 EqA 2010 (other pleaded claims were not pursued to judgment). Remedies sought were the usual tribunal remedies for successful detriment/victimisation claims (remedies not determined on appeal).

Issues before the tribunal and the EAT:

• Whether specific events in 2012 and 2013 amounted to protected disclosures/acts;
• Whether the nine identified acts or failures by FGW in 2018-19 were detriments within the statutory meaning;
• Crucially, whether those detriments were inflicted "on the ground that" the claimant had made protected disclosures and/or "because" he had done protected acts (causation/attribution);
• Whether the tribunal erred in fact or law, or acted procedurally unfairly, in reaching its conclusions.

Court's reasoning and conclusion:

• The tribunal accepted that at least two 2012 matters were protected disclosures and that at least one 2013 tribunal claim was a protected act.
• The tribunal found nine detriments were suffered by the claimant in 2018-19 (for example, suspension, a flawed investigation, failure to engage with solicitor correspondence, and continuation of suspension notwithstanding non-gross-misconduct status).
• The tribunal concluded that a prejudicial "collective memory" within FGW management, personified and transmitted by an HR officer (Klaudia Czechowicz), had permeated decision‑making and influenced the investigator (Mr White), even though Mr White and Mr Haynes personally did not have direct knowledge or were not personally motivated by the historic protected matters.
• The EAT held the tribunal was entitled to attribute liability to FGW on the facts as a matter of direct employer liability: the tribunal’s analysis that the management culture, perpetuated by HR and conveyed to the investigator, explained the detriments was adequately reasoned and not barred by authority. Challenges that findings were perverse, inadequately reasoned, or procedurally unfair were rejected.

The court also reviewed authorities on causation and attribution (including Jhuti, Malik, Reynolds, Western Union and others) and explained why, on the facts, the tribunal was entitled to its approach.

The appeal was dismissed. The EAT held that the Employment Tribunal had not erred in finding FGW liable for whistleblowing detriments and victimisation because the tribunal’s factual findings — that a prejudicial collective memory within FGW management, propagated by an HR officer and communicated into the investigation and disciplinary process, materially influenced the employer’s treatment of the claimant — were adequately reasoned and not perverse. Procedural fairness complaints about the tribunal’s reference to a "management lore" were rejected because the pleaded case and evidence put FGW on notice and FGW chose not to call the HR witness.

The disputed Employment Tribunal decision was handed down on 14 February 2022 after a five-day hearing. In April 2023 Mr John Bowers KC ordered that the appeal be set down for a full hearing on all grounds. The Employment Appeal Tribunal heard the appeal (hearing date 23 April 2024) and delivered judgment dismissing the appeal on 24 May 2024. Neutral citation: [2024] EAT 82.