121: Employment Appeal Tribunal clarifies ‘bad faith’ test in victimisation claims

Under the Equality Act 2010, victimisation can occur when a worker is subjected to a detriment because they have done a ‘protected act’.

A protected act can include making an allegation that someone has contravened the Equality Act. However, if that allegation is false, it will not be a protected act if it was made in bad faith. In Saad v Southampton University Hospitals NHS Trust, the Employment Appeal Tribunal (EAT) held that although an ulterior motive can be relevant to establishing bad faith in victimisation cases, the key question is whether the employee acted dishonestly.

Mr Saad worked as a trainee cardiothoracic surgeon at Southampton University Hospitals NHS Trust. He raised a grievance alleging that his training programme director had made abusive and discriminatory remarks about him on racial or religious grounds. At the time of raising the grievance, there were serious concerns about Mr Saad’s performance and he was facing the likelihood that he would fail an assessment needed to qualify as a surgeon. Mr Saad’s grievance was not upheld. His employment was subsequently terminated after he failed his assessment and was removed from the training programme. Mr Saad then brought various claims against the Trust, including a claim for victimisation on the basis that his grievance was a protected act under the Equality Act 2010.

The Employment Tribunal held that Mr Saad’s allegation about his training programme director was false, but that Mr Saad subjectively believed it to be true. However, it also found that he had brought the grievance with the ulterior motive of postponing the forthcoming performance assessment. The Tribunal concluded that he had made a false allegation in bad faith and therefore dismissed his victimisation claim.

Mr Saad appealed to the EAT. The EAT held that the key question in establishing whether there was bad faith for the purposes of a victimisation claim is whether the worker acted honestly in making the allegation that is relied on as a protected act. Although an ulterior motive may be relevant, it is not the primary focus. In Mr Saad’s case, the Tribunal had found that he subjectively believed that the alleged discriminatory remarks had been made. He had therefore made his allegation honestly, and the fact that he had an ulterior motive did not mean that he had acted in bad faith. The EAT substituted a finding of victimisation.

This case clarifies that in order to defeat a claim of victimisation on the grounds of bad faith, an employer must show that the allegation relied on as a protected act was false and that the employee acted dishonestly. Although the existence of an ulterior motive may be relevant, it will not in itself be sufficient to defeat the claim.