In considering a claim for victimisation, the Employment Appeal Tribunal has held an employee did not act in bad faith even though his allegations were made with an ulterior motive.
Victimisation occurs where a person (A) subjects another person (B) to a detriment either because B has done a protected act or because A believes B has done or may do a protected act.
A ‘protected act’ includes:
- bringing proceedings such as a discrimination claim under the Equality Act 2010 (EqA 2010);
- giving evidence or information in connection with proceedings under EqA 2010;
- doing any other thing for the purposes or in connection with EqA 2010; or,
- making an allegation that that a person has contravened EqA 2010.
An act will not be a protected act if the evidence or allegation made by the employee is false and given in bad faith. This is not to be confused with the concept of “good faith” used in whistleblowing cases prior to 25 June, as demonstrated by the case of Saad v Southampton University Hospitals.
Mr Saad was a trainee cardiothoracic surgeon employed by Southampton University Hospital Trust (the Trust).
Performance concerns were raised regarding Mr Saad throughout his training. However, Mr Saad considered he was the subject of unfair treatment and in July 2011 he raised a grievance. The grievance included a complaint that in 2007 the training programme director at the Trust had made jokes that Mr Saad, who is Sudanese, looked like a terrorist. Mr Saad had not witnessed these comments being made himself but that he had been told about them by colleagues.
In October 2011 Mr Saad brought a claim for automatic unfair dismissal for whistleblowing and victimisation in which he relied on his grievance as the protected act and protected disclosure.
The Employment Tribunal rejected Mr Saad’s whistleblowing claim. Although the Tribunal accepted that Mr Saad subjectively believed that the terrorist comment had been made it found his belief was not reasonable. The Tribunal also found Mr Saad’s grievance was not made in good faith as his predominant purpose in making his grievance was actually to delay the assessment process as part of his training programme which he knew he would fail.
The same logic was then applied to the victimisation claim, with the ET finding Mr Saad’s allegation about the terrorist comment had been made in bad faith due to his ulterior motive. Mr Saad appealed this finding to the Employment Appeal Tribunal (EAT).
Mr Saad’s appeal was upheld. The EAT found it had been wrong to apply the good faith test for whistleblowing claims to the question of bad faith for his victimisation claim.
The EAT held that in a victimisation case, the primary question in considering bad faith is whether or not the employee acted honestly in making their allegation. Whether or not the employee had an ulterior motive can be relevant but should not be the focus of the tribunal. In this case, Mr Saad had genuinely believed that the terrorist comment had been made. As his allegation had been made honestly, it had been made in good faith and his claim for victimisation should be upheld.
This case is a useful illustration of the principle of bad faith in victimisation claims and may have an impact on the ability to defend such claims. This is because it will not be possible for employers to simply point to an ulterior motive as evidence of bad faith. However, if the allegation is patently false, it will be more difficult to argue that a Claimant honestly believed it, particularly if they do have an ulterior motive.
Employers should ensure that they have robust processes in place to investigate any complaints of victimisation in the workplace, even where the motives for raising issues may appear suspect.
If you would like to discuss this claim further, please contact your usual contact in the employment and pensions team.