The Employment Appeal Tribunal (EAT) has decided that in circumstances where bad faith is alleged in a claim of victimisation, the primary question is whether the employee acted honestly.

Saad v Southampton University Hospitals NHS Trust, UKEAT/0276/17

Facts

Mr Saad, a trainee surgeon, was the subject of ongoing performance concerns. When these came to a head, he brought a grievance raising various complaints including allegations that a senior surgeon had made racist comments about his ethnic background four years previously. The grievance was investigated and ultimately rejected, and Mr Saad’s employment was later terminated.

He brought claims against the Trust for unfair dismissal (on the grounds of whistleblowing) and victimisation. His claims were rejected. The tribunal found that the predominant purpose of the grievance was to delay and avoid the performance management process he was subject to; it had not been brought in good faith. In relation to the claim of victimisation, Mr Saad had made a false allegation in bad faith. He appealed to the EAT.

EAT decision

The EAT held that the bad faith test for claims of victimisation under the Equality Act 2010 is different to that applying in whistleblowing claims. For the purpose of claiming victimisation, the primary question is whether the individual has acted honestly in making the allegation. The existence of an ulterior motive might be relevant but should not be the focus of the enquiry. The tribunal found that Mr Saad had subjectively believed that the alleged racist comment had been made. He had made the allegation honestly, and so had not made it in bad faith. The EAT, therefore, upheld Mr Saad’s appeal and substituted a finding of victimisation.

Consequences

This decision makes it clear that while an ulterior motive might be relevant, it should not be the primary focus in deciding whether or not victimisation occurred. If an employee has acted honestly in giving the evidence or making the allegation, it is unlikely to have been made in bad faith even if (as in this case) it has only been raised several years later and in response to genuine performance concerns. In such circumstances, it is then for the employer to be able to satisfy the tribunal that the alleged protected act was not a significant influence on the detriment to the individual. In this case, the employer was unable to do so.