Test for 'bad faith' in victimisation claim is honesty not motivation

Saad v Southampton University Hospitals NHS Trust

An employee will be protected from victimisation if they wrongly but honestly believed the allegations they made to be true, even if they had an ulterior motive for making those allegations.

The law

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’ (s. 27 of the Equality Act 2010). However. s 27(3) specifies that if the allegation constituting the protected act is false, it will not be a protected act if it was made in ‘bad faith’.

Background

Mr Saad was a trainee surgeon. Performance issues arose during his training and around the time that these issues came to a head (when it was anticipated that he would fail an assessment), he raised a grievance. This included alleged terrorist comments made by his programme director (four years earlier) saying that he was ‘a terrorist looking person’. Mr Saad alleged this was abusive and discriminatory on racial and religious grounds. His grievance was rejected, and he was subsequently removed from the training programme and dismissed.

A tribunal found that the allegation was false, but that Mr Saad subjectively believed it to be true. However, it also found that the grievance had been brought with the ulterior motive of postponing the upcoming assessment. On that basis the tribunal concluded that Mr Saad had acted in bad faith and dismissed his claim for victimisation. He appealed.

EAT decision

The EAT allowed his appeal.

The ‘bad faith’ test for victimisation is different from the good faith test that used to apply in whistleblowing cases (before changes made in 2013) and the finding that an individual has failed to act in good faith does not automatically mean that they have acted in bad faith. When considering a victimisation claim, a tribunal should not read across its findings from a protected disclosure claim as that fails to address the relevant question. The primary question for victimisation purposes is whether the worker has acted honestly in giving the evidence or information. Whilst motivation could be part of the relevant context, the primary focus in determining ‘bad faith’ was the question of the employee’s honesty. Because Mr Saad subjectively believed that the alleged terrorist comment had been made, he had therefore made it honestly and so had not made it in bad faith.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0276_17_2208.html

Comment

This case is a useful reminder that an employer should not look only at the motive for any allegation but consider the actual belief of the employee making the allegation. Just because an allegation is raised as a means to deflect criticism during a disciplinary process does not automatically mean it is done in bad faith.