Victimisation occurs where a person (A) subjects another person (B) to a detriment because either:
- B has done a protected act; or
- A believes that B has done, or may do, a protected act.
Protected acts include making an allegation that A has contravened the Equality Act 2010.
In this case, Mr Saad was a trainee surgeon employed by the Southampton University Hospitals NHS Trust. During his period of training, a number of issues arose. However, this case focused on two particular issues: Mr Saad was subject to concerns from his employer regarding his performance; but at the same time, Mr Saad considered that he had been subject to unfair treatment by various members of the NHS Trust.
Mr Saad raised a grievance to his employer. Some of the allegations raised by him were that he had heard that he was the subject of jokes by his Programme Director about his Sudanese background and that he was described as looking like a terrorist. As such, Mr Saad believed that this was abusive and discriminatory on racial or religious grounds. The NHS Trust rejected his grievance, removed him from the training programme and then terminated his employment.
Mr Saad issued proceedings claiming unfair dismissal, for whistleblowing, and victimisation on the basis that his grievance about the terrorist comments was both a protected disclosure and a protected act.
At the ET, Mr Saad’s claims were rejected. Whilst it was found that he believed that the Programme Director had made the comments and jokes, his beliefs were not reasonable. Further, it found that the primary purpose of his grievance had been to delay, and possibly avoid altogether, the performance processes which he was facing. As such, they decided that his grievance was made in bad faith. The ET decided that this decision covered both Mr Saad’s whistleblowing and victimisation claims.
Mr Saad appealed to the EAT on the basis that the tests for good faith in making a protected disclosure under the whistleblowing legislation and race discrimination victimisation are different. The question for racial victimisation is whether the worker has acted honestly in giving the evidence which they have relied on as a protected act. The existence of an ulterior motive, whilst potentially relevant, should not be the focus of any enquiry. The EAT found that Mr Saad subjectively believed that the alleged comments about him were true. Therefore, he had made the claim honestly and it had not been in bad faith. As such, the EAT found that he had been subject to victimisation and allowed his appeal.
What does this mean for your or your business, and what should you be doing now?
This case shows that employers should be wary of any claims made, even where there is an apparently clear ulterior motive for those claims. The ability to defend claims based on the fact that the claim has not been made in good faith have been diminished because, as long as the employee honestly believes their claims, the defence of claims made in bad faith may well no longer stand. Their actions must have been unreasonable or dishonest to be defended in this vein.
Any complaints of victimisation, harassment or discrimination should be thoroughly investigated once you have been made aware of it. To deal with a situation at the source, is far more effective than having to defend the business at a tribunal. It was noted in the tribunal that employees may only become minded to raise genuine complaints when they are faced with complaints about themselves at a later date. Only by being thorough and dealing with complaints head on will you ensure that you have covered yourself from claims of this ilk.
The full judgment from the EAT can be read HERE.