17 October 2018
The EAT has held that in victimisation claims, 'bad faith' means something different from that in other statutory tests. If the claimant has acted honestly (even if the information or allegation turns out not to be true), then ulterior motives are likely to be irrelevant.
In UK employment law, victimisation means the particular situation where one person (A) subjects another (B) to a detriment because B has done, or A believes B has done or may do, a 'protected act'. Protected acts include bringing a discrimination claim, giving evidence in such a claim, or making an allegation that A has done something discriminatory which is unlawful under the Equality Act 2010. However, giving false information or making a false allegation are not protected acts if the giving or making was done in bad faith.
Whistleblowers are protected if they have made a qualifying protected disclosure. Before 25 June 2013, the worker had to make the disclosure in good faith, which could mean that a disclosure made principally for an ulterior motive would not be covered by the law. Since 2013, disclosures made in good faith may still qualify for protection, but any compensation awarded to successful claimants can be reduced by up to 25%.
Mr Saad was a trainee surgeon, employed by Southampton University Hospitals NHS Trust and on a training programme run by the Wessex Deanery. The Trust and the Deanery had concerns about his performance and began a performance management procedure, but Mr Saad felt he was being unfairly treated because the training programme director had made a number of jokes about his Sudanese background, saying he looked like a terrorist (and, in particular, the perpetrators of a particular terrorist attack).
Mr Saad brought a grievance in 2007 in which he referred to the alleged 'terrorist' comment as being abusive and racial or religious discrimination. His grievance was rejected and eventually he was both removed from the training programme and dismissed by the Trust.
He brought a number of claims, including unfair dismissal (for whistleblowing) and victimisation. He said that his grievance about the terrorist comment was a protected disclosure for whistleblowing purposes, and a protected act under the Equality Act for which he should not have been victimised.
The employment tribunal rejected his claims, finding that (in relation to the whistleblowing claim), while Mr Saad subjectively believed that the programme director had made the terrorist comment, it was not reasonable for him to do so. Mr Saad had not made the disclosure in good faith, because his predominant purpose in bringing his grievance had been to delay the performance management process. The employment tribunal applied the same logic to his victimisation claim and found that he had made a false allegation in bad faith.
Mr Saad appealed to the Employment Appeal Tribunal (EAT), saying the good faith tests for whistleblowing (under the old law) and victimisation were different.
The EAT allowed his appeal.
The test of bad faith in victimisation claims is different from that which applied in whistleblowing law before June 2013. In victimisation cases, the primary question is, "Did the worker act honestly in giving the information or making the allegation which is the protected act?"
It may be relevant that the worker has an ulterior motive, but this is not the focus of the enquiry. Good faith does not require the employment tribunal to first determine whether or not the worker believes what they are saying; the tribunal must only find whether the information is true or false and, if it is false, whether it was given by the worker in good or bad faith.
Mr Saad had brought his grievance honestly, because he subjectively believed that it was true and had therefore not made the allegation in bad faith. The EAT found that he had been victimised for doing so when he was removed from the training programme.
This decision makes it more likely that a worker will get over the 'good faith' hurdle in victimisation claims.
Tempting though it may be, employers should not focus on a worker's ulterior motives for making an allegation. In order to defeat the claim, employers will need to demonstrate:
The question is whether the worker acted honestly in giving the information, or making the allegation, that forms the protected act, even if it later turned out not to be true. If so, it is likely that he or she did so in good faith.
If the allegation is obviously false, then it may be harder for the worker to argue that he or she reasonably believed that it was true.