UK: employers can be liable for detriment where whistleblowing part of 'collective memory'

The EAT has upheld a tribunal decision that an employer was liable for whistleblowing detriment and victimisation where an employee was treated unfairly during a disciplinary process by a decision-maker who had been influenced by a prejudicial 'collective memory' of the individual as a troublemaker, even though the decision-maker had no personal knowledge of the employee's complaints made several years earlier.  Whether a detriment was inflicted 'on the ground that' a claimant made a protected disclosure or 'because' he did a protected act is ultimately a factual determination for the tribunal to make and the EAT considered it unnecessary to try and fit the facts into one of the types of case covered by previous authorities (eg, imposing liability due to manipulation of a decision-maker or tainted information).

In First Greater Western Ltd v Moussa a general management culture of hostility towards the claimant, tagging him as an ‘agitator’ and ‘malign influence’, had influenced the decision-maker himself and also permeated the approach of the HR department in its advice to him.  It was not necessary for there to be identified individual decision-makers who knew and were motivated by the protected complaints, as the influence on the decision-maker could be attributed to the employer generally and the employer could be (and was) directly liable.

The decision takes a different approach from the earlier EAT ruling in William v Lewisham & Greenwich NHS Trust (see our blog post here).  There the EAT held that liability for whistleblowing detriment requires the individual decision-maker to have had personal knowledge and motivation (whereas for a whistleblowing dismissal claim it is enough to show manipulation of an innocent decision-maker by someone with knowledge and motivation of the protected disclosure).  A Court of Appeal ruling would be helpful to clarify the law in this area. 

Pending any further appeal, the case highlights the importance of management and HR understanding the need not to allow a culture of hostility to whistleblowers, or those submitting grievances, to develop.