First Greater Western Limited v Ahmed Moses Moussa

An employer may be directly liable for whistleblowing detriment where protected disclosures and protected acts materially influenced the claimant’s treatment through an institutional management culture, even though an individual decision-maker lacked direct knowledge of them.

Causation remains a factual question. A tribunal may look beyond the immediate decision-maker and identify the real reason for detrimental treatment, provided it gives clear, evidence-based reasons. It need not accept a claimant’s allegation of a personal vendetta or conspiracy in order to find the statutory causal connection.

An appellate tribunal should not interfere with adequately reasoned findings of fact merely because another analysis was possible.

The claimant, a gateline operative employed by FGW, made complaints in 2012 and brought tribunal proceedings in 2013. The earlier proceedings settled on terms including his reinstatement and transfer.

Following a passenger incident in 2018, FGW suspended the claimant and commenced disciplinary proceedings. The Employment Tribunal found numerous detriments in the handling of the investigation, suspension, disciplinary allegations, complaints and communications. It dismissed the claims against two individual managers but upheld claims against FGW for whistleblowing detriment under section 47B of the Employment Rights Act 1996 and victimisation under section 27 of the Equality Act 2010.

FGW appealed on grounds including perversity, procedural unfairness, inadequate reasons and causation. The central issue was whether the 2012 protected disclosures and 2013 protected act caused FGW’s detrimental treatment in 2018.

1. Appeal dismissed. The Tribunal was entitled to find that FGW subjected the claimant to the established detriments because of protected acts and on the ground of protected disclosures.

2. Causation under section 47B is ultimately a factual determination. The Tribunal had made clear findings that the earlier matters had generated an institutional, prejudicial collective memory within FGW management. That culture permeated HR, particularly Ms Czechowicz, and through her influenced Mr White’s handling of the disciplinary process.

3. The Tribunal was entitled to identify that management culture, rather than a conspiracy or vendetta by Mr Haynes, as the real explanation for the adverse treatment. Its findings were supported by the differential treatment of the claimant and his colleague, the unjustified continuation of suspension, the defective investigation, the handling of the claimant’s complaints, and Ms Czechowicz’s email and advice.

4. The case involved FGW’s direct liability under section 47B(1), not impermissible attribution to an innocent individual decision-maker or vicarious liability for one identified employee. The management culture was not created or transmitted by Ms Czechowicz alone. The Tribunal could therefore find that FGW itself, as employer, acted for the prohibited reasons, although neither Mr Haynes nor Mr White was personally liable.

5. The Tribunal’s reference to “management lore” did not introduce an unpleaded case. It described a permissible inference from the pleaded allegations, the agreed issues and the evidence. FGW knew that Ms Czechowicz’s role was central and chose not to call her.

6. The challenges to the findings concerning the inadequacy of Mr White’s investigation and the failure promptly to address the claimant’s complaints disclosed no perversity. The reasons were clear and adequate when read fairly and in context.

• Employment Appeal Tribunal: dismissed FGW’s appeal: [2024] EAT 82.
• Employment Tribunal, London Central: in a decision dated 14 February 2022, upheld the claimant’s whistleblowing-detriment and victimisation claims against FGW, while dismissing the claims against the two individual respondents.