Victimisation and Bad Faith

In the case of Saad v Southampton University Hospitals NHS Trust, the Employment Appeal Tribunal (EAT) held that when considering bad faith for the purposes of a victimisation claim under the Equality Act 2010, the primary focus should be on the employee’s honesty and not on their ulterior motive.

The Equality Act 2010’s victimisation provisions protect claimants who do (or might do) “protected acts” such as bringing discrimination claims, complaining about harassment, or getting involved in some way with another claimant’s discrimination complaint (such as giving evidence). Giving false evidence or information, or making a false allegation, is not a protected act if done in bad faith.

The Claimant, Mr Saad was a Specialist Registrar, who was training to become a Cardiothoracic Consultant, employed by the Respondent. The Respondent had various performance concerns regarding the Claimant who was facing the likelihood that he would fail the assessment required to qualify as a Consultant Cardiothoracic Surgeon. During this time, the Claimant raised a grievance regarding a racial discriminatory remark alleged to have occurred four years previously.

The Respondent rejected the Claimant’s grievance, removed him from the training programme and subsequently terminated his employment.

The Claimant issued claims of unfair dismissal on whistleblowing grounds and victimisation. He relied on his grievance concerning the racist remark as both a protected disclosure (for his whistleblowing claim) and a protected act (for his victimisation claim). Under the victimisation claim, the Claimant alleged that he had suffered a detriment in being prohibited from returning to work.

With regard to the Claimant’s whistleblowing claim, the Employment Tribunal held that although the Claimant subjectively believed that the racist remark had been made, the belief was not reasonable. They found that the grievance had not been made in good faith because the predominant purpose of the grievance was to delay and avoid the performance concerns that the Claimant faced.  (Note that good faith is no longer required in order for a disclosure to be protected, but it was at the time of this case). The Tribunal used exactly the same logic to dismiss the victimisation claim and held that the Claimant had therefore acted in bad faith for the purposes of subsection 27(3) Equality Act 2010.

The Claimant appealed the Tribunal’s decision in relation to his victimisation claim.

The EAT allowed the appeal, holding that the Tribunal had erred in law as it had wrongly applied the “good faith” test under the whistleblowing legislation to the victimisation claim. The “bad faith” test under the victimisation law had different considerations.

The EAT said that whilst an ulterior motive (i.e to delay performance concerns) may be relevant in determining bad faith, it should not be the main focus. Instead, the worker’s honesty in giving evidence or information, or making an allegation should be the primary focus.

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