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.