A Saad case of bad faith.

10th September 2018 Employment

In Saad v Southampton University Hospitals NHS Trust the Employment Appeal Tribunal discussed how bad faith should be considered when bringing a victimisation claim.

The Claimant was employed by the Respondent as a trainee surgeon throughout his training period. A number of issues arose during this training period, for example, the Respondent had concerns with the Claimant's job performance: however, the Claimant considered that he was the subject of unfair treatment. The Claimant, who is from a Sudanese background, explained that he was told that his training programme director had allegedly made jokes about his ethnic background.

Immediately before a performance review, the Claimant raised a grievance, alleging that his training director's comments were abusive and discriminatory on racial or religious grounds. After investigations by the Respondent, the grievance was rejected and the Claimant was subsequently removed from the training programme and had his employment terminated.

The Claimant issued proceedings; his claims against the Respondent included unfair dismissal on whistleblowing grounds and victimisation. He relied on his grievance about the comments as both a protected disclosure (for whistleblowing) and a protected act (for victimisation namely that he had been subjected to detriment because he had complained about alleged discrimination).

The ET rejected the Claimant's complaints. In relation to whistleblowing, it found that despite the fact that the Claimant subjectively believed that the programme director had made the alleged comments this belief was not reasonable. In addition to this, the ET found that by raising the grievance at the time he did, (just before a performance review), the Claimant's intention had been to delay and avoid the performance processes that he faced. The complaint therefore had not been made in good faith.

The ET then considered the Claimant's claim for victimisation. Having found that his claim for whistleblowing had not been made in good faith, the ET applied this finding to the victimisation claim, and held that this complaint had been made in bad faith.

It was on this point that the Claimant appealed to the EAT, suggesting that the good faith test for whistleblowing should be assessed separately to the bad faith test used in victimisation claims

The EAT concurred with the Claimant, and held that the bad faith test for victimisation purposes is different to the good faith test that used to apply in whistleblowing claims. The question the Tribunal must consider is whether a worker has acted honestly in making their allegations.

In particular, the EAT discussed the test contained in section 27(3) of the Equality Act 2010. That test considers whether the evidence or allegation is true or false, and if it is false, the tribunal must decide if it was given in bad faith i.e. whether the evidence was given honestly or not.

In the Claimant's case, the ET had found that he had in fact believed that the comments had taken place when he made the allegations. On that basis, the EAT confirmed that he had therefore made the allegation honestly and so had not made it in bad faith.

The EAT upheld the appeal, and set aside the dismissal of the Claimant's complaint of victimisation. The matter was then returned to the ET to determine remedy.

Crucially, the EAT has confirmed the key question to consider in victimisation claims: did the employee act honestly in giving the evidence or information that is relied on as a protected act? If so, this is likely to defeat any bad faith argument. So long as a Claimant is found to have a genuine belief that an allegation is true, even if an ulterior motive is present when making the allegations, then it will likely be held that a Claimant was acting in good faith when making the allegations for the purpose of a victimisation claim.

This case could impact on how Respondents deal with victimisation claims in the future. The focus may now be upon proving that a Claimant could not have had a genuine belief that an allegation is true, rather than highlighting any possible ulterior motive.

To discuss this, or similar issues with our emplyment team please do not hesitate to get in touch.

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Paul Chamberlain is a Partner and Head of Department located in Manchesterin our Employment department

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