Victimisation and bad faith – ulterior motives rarely relevant
The Employment Appeal Tribunal has found that the primary question when considering bad faith for the purposes of a victimisation claim under the Equality Act 2010 is whether the employee acted honestly in giving the evidence or information, or in making the allegation. The issue of whether the employee was acting with an ulterior motive will rarely be relevant (Saad v Southampton University Hospitals NHS Trust).
Mr Saad was a trainee cardiothoracic surgeon. Various performance issues arose during his training and around the time that these issues came to a head, he raised a grievance. This included alleged terrorist comments made by his programme director 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.
Mr Saad issued proceedings for unfair dismissal on whistleblowing grounds and victimisation. He relied on the grievance about the terrorist comment as both a protected disclosure (for whistleblowing purposes) and a protected act (for victimisation purposes). His claims were rejected by the tribunal which found that the predominant purpose of Mr Saad’s grievance had been to delay and avoid the performance process and so had not been made in good faith.
The EAT found that 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). The primary question for victimisation purposes is whether the worker has acted honestly in giving the evidence or information. The existence of an ulterior motive is not the focus of the enquiry. In Mr Saad’s case, the EAT found that he had 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.
This importantly clarifies that ulterior motives should not be the focus in assessing bad faith in victimisation claims. The key is whether the worker honestly believes the information, not their reasons for providing it. This will be welcomed by Claimants as the test will be easier to make out in cases of victimisation as challenging the honesty of views is not without its difficulties.
For more information, please contact Nick Hurley.
HR Magazine quotes Nick Hurley on redundancy and employee rights
"Unfortunately the legal remedies for employees in companies that become insolvent are very limited"
Unknown future claims cannot be settled
The EAT has confirmed that provisions in the Equality Act 2010 mean that unknown future claims cannot be compromised.
HR Magazine quotes Nick Hawkins on a pregnancy discrimination case and what companies need to be mindful of
Pregnant worker given parenting tips before sacking wins tribunal case
“Truss me, I quit!” - 5 Tips to Handle Unexpected Resignations and Post-employment Grievances
Read our guidance for employers on dealing with unexpected and “heat of the moment” resignations
Michael Powner and Ellen Roberts write for People Management on the benefits and drawbacks of novel compensation packages
The benefits and drawbacks of novel compensation packages
HR Magazine quotes Anne-Marie Balfour on the importance of protecting employee data
Interserve handed £4 million fine after staff data breach
What support should employers provide for menopause in the workplace?
We discuss the key support employers should provide for menopause in the workplace
People Management quotes Anne-Marie Balfour on employee monitoring
"Whilst monitoring of employees is not necessarily unlawful, it is a legal minefield"
What’s new in employment law podcast: Innovative reward schemes
As employers compete for the best talent, looking at new ways to reward staff is a key driver for recruitment and retention.
Sophie Rothwell writes for Employment Law Journal on demystifying employment contracts
Demystifying employment contracts: Beyond the basics
The EAT has held that a document did not become privileged retrospectively when an amended version was disclosed
The Employment Appeal Tribunal (EAT) has held that a grievance investigation report did not retrospectively attract legal advice privilege
Swiss/UK secondments – the basics
A short guide to the key requirements to second workers from Switzerland to the UK and from the UK to Switzerland.
Back to the office or quietly quitting?
Quiet quitting is where employees choose to do the minimum amount of work.
FT Ignites Europe quotes Nick Hurley on quiet quitting in the asset management industry
"I cannot see any employers embracing quiet quitting as a concept. Most companies will see it as something to reduce or eliminate"
UK Employment Law – A Guide
Looking to learn more about employment law? Discover exactly how it protects you with our complete guide.
Lesley O'Leary writes for The Law Society Gazette on law firm strategy
‘You need to have a frank discussion about the things that matter to clients’
Megan Paul writes for People Management on how business can help stamp out modern slavery in its supply chains
Stamping out modern slavery: how can HR help?
The Times quotes Kelvin Tanner on new scale up visas
"It is difficult to see how the scale-up route would be a more attractive option for an employer than the skilled worker route.”
Clare Davis writes for Personnel Today on hot weather and employment law
Hot summers, hot desks – employment law advice on working through heatwaves