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.
Our thinking
IBA Annual Conference
The IBA heads to Miami for its 2022 Annual Conference bringing together thousands hundreds of lawyers from around the world.
Rose Carey
Could the UK’s Life Sciences Vision be restricted by its Immigration Policy?
We explore some of the visa options that may be open to businesses in the sector and their relative pros and cons.
Briony Richards
AI and HR - How can employers reduce the risks associated with using artificial intelligence to help manage their workforce?
If they are not mindful of the risks associated with AI, employers may find themselves in breach of employment and data protection law.
Sophie Clark
Are workers entitled to the Bank Holiday off for the Queen’s Jubilee? Don’t bank on it!
Nick Hawkins
Nick Hawkins writes for Employment Law Journal on demystifying employment contracts
Key considerations for drafting effective post- termination restrictions
Kelvin Tanner
Brexit: Implications for Immigration
Find out what you need to know about what Brexit means for you, your workers and your organisation.
Rose Carey
Is the UK open for business? A discussion with the Home Office
We hosted an immigration webinar with the policymakers from the Home Office.
Is the UK open for business? A discussion with the Home Office
Join our Immigration team for a live webinar with policymakers from the Home Office.
Rose Carey
Relocating to the UK – Post Tier 1 (Investor)
The UK government closed the Tier 1 Investor visa route with immediate effect on 17 February 2022.
Lesley O’Leary
Briefing publishes Lesley O’Leary 's comments on hybrid working and the impact on collaboration
Briefing publishes Lesley O’Leary 's comments on hybrid working and the impact on collaboration
Emily Chalkley
How to tackle a large Gender Pay Gap
Nick Hawkins
Nick Hawkins writes for Employment Law Journal on demystifying employment contracts
Nick Hawkins explains the key legal principles that govern contracts of employment.
Michael Powner
Michael Powner and Emily Chalkley write for People Management on who pays the price for vicarious liability
Michael Powner and Emily Chalkley explain whether an employer should ever be liable for wrongdoing committed by their employees.
Katherine Dennis
New Global Mobility visa route – coming Spring 2022
A new Global Business Mobility visa route is launching in the Spring of 2022.
Clare Davis
National Minimum Wage – At risk of committing a criminal offence?
To best prepare, you need to understand the nature of the risks involved and take steps to minimise them.
Rose Carey
Summary of corporate immigration changes 2022
The Home Office has announced a raft of business immigration changes which will affect employers and workers alike.
Becky Lawton
New family-friendly rights – but will they be implemented in 2022?
The government has committed to introducing several new family rights following a number of consultations over the last couple of years.
Becky Lawton
The talent gap, recruitment and retention issues
Employers continue to struggle attracting and retaining talent in a market rife with labour shortages and widely-reported pay pressures.
Paul McCarthy
New Employer and Landlord Digital ID Checks – A Good IDea?
Becky Lawton
Becky Lawton writes for Employee Benefits on whether new staff family rights come into force in 2022
The government has committed to introducing several new family rights following a number of consultations over the last couple of years.