29 August 2018
Victimisation occurs when someone is subjected to a detriment because they have done (or it is believed they have or may do) a protected act. However, if the individual gives false information or makes a false allegation, their actions cannot amount to a protected act if these were also done in bad faith. If the information or allegation turns out to be false but was made in good faith it will still be protected.
In the recent case of Saad v Southampton University NHS Trust, the Employment Appeal Tribunal (“EAT”) made clear that for the ‘bad faith’ argument to be made out there must be dishonesty on the part of the individual. In this case the claimant was training to become a Consultant Cardiothoracic Surgeon and was facing an assessment he was likely to fail. He raised a grievance regarding an alleged racist remark made four years previously. The Tribunal found that the claimant had believed his allegation was true but that he had an ulterior motive in raising this, namely to postpone the assessment and, as such, acted in bad faith. However, the EAT disagreed. It held that for victimisation claims, the primary focus was the individual’s honesty. If the claimant subjectively believed his allegation to be true (even if this was unreasonable) it could not be said that he acted in bad faith even if he had an ulterior motive in bringing this up.
This case demonstrates that even where there is a clear ulterior motive, employers should be careful not to rely on the ‘bad faith’ argument without proper consideration of the circumstances. The individual’s actions must go beyond even the ‘unreasonable’ and fall firmly within the ‘dishonest’ before the argument can be relied on.