This was considered by the Employment Appeal Tribunal in the case of Saad v Southampton University NHS Trust[1]

If made dishonestly, a claim for victimisation can be struck out for being made in ‘bad faith’.

Facts of the case

Mr Saad, the claimant, had been training to become a cardiothoracic surgeon at Southampton Hospitals NHS Trust and transferred to the Trust’s Cardiothoracic Unit (CTU) in 2003. In 2006 he was referred by the Training Programme Director to a Professional Support Unit (PSU) as he was deemed not to be making sufficient progress. Mr Saad spoke to his PSU case manager about what he perceived to be unfair treatment of him within the CTU but did not wish to take any action at that stage.

In April 2011, he complained again to his PSU case manager that he was being treated unfairly and wanted an independent review of his progress. He complained that he had overheard a conversation between his supervisors that they did not feel he would complete his training.

The final report, which he received on 19 July 2011, recommended that he did not receive a pass mark which meant that Mr Saad would fail his training. On 21 July 2011, the day before the panel assessment was to be held, Mr Saad raised a grievance regarding (race) discriminatory remarks alleged to have been made in 2007 by his then Training Programme Director, namely that his superior had described him as a ‘terrorist-looking person’ and likened him to ‘the doctors who carried out the terrorist attack in Glasgow airport in 2007’. The panel assessment was therefore postponed whilst the grievance was investigated.

His grievance was not upheld, and his fixed term contract expired in 2012. The Trust decided not to renew it.

He brought claims for race discrimination, whistleblowing under the Employment Rights Act 1996 and victimisation under s27 of the Equality Act 2010. Mr Saad also brought separate claims for unfair dismissal and disability discrimination.

Employment Tribunal judgment

At the time of the Employment Tribunal (ET) decision, it was a requirement under the Employment Rights Act that an allegation be raised in ‘good faith’ for it to qualify as a protected act for the purposes of whistleblowing.

The ET dismissed his claim, citing that the main reason he raised it was to postpone the assessment he was likely to fail, and this was not ‘in good faith’.

The ET held that, since the allegation relied on for the whistleblowing claim was the same as for the victimisation claim, the same rationale could be applied so that Mr Saad had acted in ‘bad faith’ under the Equality Act and his claim for victimisation was dismissed.

The ET essentially decided that an absence of ‘good faith’ was the same as ‘bad faith’.

Employment Appeal Tribunal judgment

The ET was wrong to apply its findings in respect of the whistleblowing claim to the complaint of victimisation. They have two separate legal definitions.

As the ET had found Mr Saad had subjectively and genuinely (honestly) believed the truth of the allegation, it was not made in ‘bad faith’, regardless of whether he had an ulterior motive (i.e. to postpone his assessment). (Motive could also be a consideration but was not to be the primary focus of the assessment of bad faith). Therefore, this test potentially did not defeat the victimisation claim.

This case confirms the essential requirements to establish whether a claim for victimisation has been made in bad faith.

This case highlights the importance of employers thoroughly investigating any complaints of victimisation or harassment as soon as they become aware of the situation.