Tue 02 Oct 2018

Low bar for establishing "good faith" in victimisation claims

Victimisation can occur when, for example, an employer subjects an employee to a detriment because they have previously done something for the purposes of or in connection with the Equality Act 2010.  That could include bringing a discrimination claim or raising a grievance related to discrimination.  However, the making of a false allegation will not be protected if it is done in bad faith.

In Saad v Southampton University Hospitals NHS Trust the EAT considered the definition of bad faith for the purposes of the Equality Act.

In 2011, when facing the likelihood that he would fail an assessment required to qualify as a consultant cardiothoracic surgeon, Mr Saad raised a grievance regarding a racially discriminatory remark alleged to have been made 4 years earlier by the Programme Director for the Cardiothoracic unit (CTU).  Mr Saad alleged jokes had been made about him looking like a terrorist.  The grievance was rejected and, ultimately, Mr Saad was removed from the training because of his poor performance and his fixed term contract was not renewed.

Mr Saad made a number of claims to the Tribunal including claims of unfair dismissal, whistleblowing and victimisation.  At the time (2011) it was necessary for a protected disclosure under the whistleblowing legislation to be made in good faith (this was a requirement that was removed in 2013).  Mr Saad claimed his grievance about the terrorism comment was a protected act for the purposes of the victimisation claim and also a protected disclosure for the purposes of the whistleblowing claim.  The detriment complained of was the failure to allow him to return to a particular work unit. 

The Employment Tribunal rejected the claims.  They held that the predominant purpose of raising the grievance had been to delay and avoid the performance processes he faced, and concluded for the purposes of the whistleblowing claim that that meant the grievance had not been raised in good faith.  However, they found that Mr Saad believed the allegation he had made to be true.  The ET then used the absence of good faith in the whistleblowing claim to equate to bad faith for the purposes of the victimisation claim and both therefore failed.

Mr Saad appealed to the EAT arguing that the ET should not have drawn a conclusion of bad faith in the victimisation claim from the conclusion that good faith was absent from the whistleblowing claim - he contended that there were two different tests. 

The EAT agreed with Mr Saad.  In a victimisation claim the existence of an ulterior motive, while potentially relevant, is not the primary issue. Rather, the primary issue is whether the employee has acted honestly when making the allegation.  As the ET had found that Mr Saad had subjectively believed the allegation to be true then it was honestly made and so not made in bad faith. 

This judgement will make it more difficult for employers to argue bad faith unless an allegation is blatantly untrue.

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