Protection against victimisation not lost where employee had ulterior motive for alleging discrimination

When considering whether a person has acted in bad faith (resulting in them losing protection against victimisation), the focus should be on whether the employee acted honestly and not on whether they had an ulterior motive.

Background 

An employer victimises an employee if they treat the employee detrimentally because the employee has done a protected under the Equality Act 2010. Protected acts include making allegations of discrimination.  However, if the allegation is false and is made in bad faith it will not be a protected act. 

Facts

In Saad v Southampton University Hospitals NHS Trust, Mr Saad was a trainee cardiothoracic surgeon.  There were concerns about his performance.  He raised a grievance alleging that a racist comment had been made about him four years’ previously.  His grievance was rejected and the Trust terminated his employment.   

He claimed victimisation. The employment tribunal found that although Mr Saad subjectively believed the allegation to be true, it was in fact false.  It therefore went on to consider whether the allegation was made in bad faith.  It found that he had an ulterior motive for raising the grievance which was to delay and avoid the Trusts’ performance processes.  On that basis it ruled that the allegation was made in bad faith and his claim therefore failed.  

Mr Saad appealed to the Employment Appeal (EAT).

Decision

The EAT allowed the appeal and ruled that the primary question when considering bad faith in victimisation claims is whether the employee acted honestly in making the allegation. Whilst the existence of an ulterior motive may potentially be relevant to that question, it is not the focus of the enquiry.  

The EAT went on to rule that Mr Saad’s victimisation claim succeeded.     

Implications

Employers seeking to defend a victimisation claim on the basis of bad faith will have to show that the allegation was false and that the employee acted dishonestly. The fact that the employee may have had an ulterior motive for making the allegation will not be sufficient to defeat the claim.