Victimisation claims and bad faith

Saad v Southampton University Hospitals NHS Trust. UKEAT/0276/17/JOJ

Summary

The Employment Appeal Tribunal (EAT) allowed an appeal from the Employee against the first decision of the Employment Tribunal in relation to a victimisation complaint. The Employment Appeal Tribunal, argued that although motive could be relevant with bringing a claim of victimisation, the key question should be whether the claimant had acted dishonestly and the requirements of “good faith” in whistleblowing was different to the requirement for a defence to victimisation (i.e making a false allegation in bad faith).

What is meant by Victimisation?

Victimisation occurs where a person is subjected to a detriment because they have done, or it is believed they have done, or may do, a 'protected act'. A protected act can be bringing proceedings under the Equality Act (the Act) or giving evidence in connection with any such proceedings, doing any other thing for the purposes of or in connection with the Act, making an allegation that another person has contravened the Act. If the allegation constituting the protected act is false, it will not be a protected act if it was made in bad faith.

Facts

Mr Saad (“the Employee”) was employed by Southampton University Hospitals NHS Trust (“the Trust”) and was training to become a cardiothoracic consultant. Various issues arose with the Employee during his training programme, he was due for a performance review that he believed would go badly. The Employee raised a grievance believing that he had been the subject of unfair treatment alleging a racist remark that had been made four years earlier, which was not upheld. The Trust’s final report on the Employee did not recommend him to pass his training as he had made some serious mistakes and his employment was terminated. The Employee initiated a claim for unfair dismissal on the grounds of victimisation and whistleblowing. In relation to victimisation, he relied on his grievance about the terrorist comment as both a protected disclosure and a protected act.

The tribunal found that the claimant’s allegation was not reasonable and that the allegation was false but the Employee subjectively believed it to be true. The ET also found however that the grievance had been brought with the ulterior motive of postponing the Employee’s upcoming assessment. The Employment Tribunal in the first instance read its whistleblowing findings (i.e the allegation was not made in good faith) across and concluded Mr Saad had made a false allegation in bad faith, therefore there was no victimisation.

Outcome

The Claimant appealed with the EAT commenting that 'bad faith' for the purposes of victimisation has a core meaning of dishonesty. Whilst motivation could be part of the relevant context, the primary focus in determining 'bad faith' was the question of the employee’s honesty. The EAT commented that the ET's finding that the Claimant had subjectively believed his allegation to be true meant that he had acted honestly. The fact that he had an ulterior motive in making the allegation did not mean that he had acted in bad faith. The EAT ordered the matter to be returned to the ET to decide on remedy.

Implications for Employers

This decision makes it clear that an employer needs to be mindful of what they must establish when resisting a victimisation claim on the basis of bad faith. In order for an employer to defeat a claim on these grounds, the employer must show that the evidence, allegation or information was false and that the employee acted dishonestly. It will not be enough for an employer to show an employee had an ulterior motive for doing a protected act and as such will not in itself be sufficient to defeat a victimisation claim. Should an employer advance such a defence it is likely to be unpopular with the Judge with the employer facing criticism.