Case update (3): Victimisation – acting in bad faith

Summary: Does an employee, for purposes of a victimisation claim, have to act dishonestly for an allegation to be made in bad faith?

Yes, held the EAT in Saad v Southampton University Hospitals NHS Trust available here.

Facts:  Mr Saad, the employee, was a trainee surgeon employed by the Southampton University Hospitals NHS Trust, the employer. During his period of training a number of performance issues arose.  Around the time that these issues came to a head, Mr Saad raised a grievance. The grievance included an allegation that his programme director said he was “…a terrorist looking person“. Mr Saad alleged this was abusive and discriminatory on racial and religious grounds. The employer rejected Mr Saad’s grievance and he was subsequently removed from the training programme and dismissed.

Mr Saad brought Tribunal claims for unfair dismissal on whistleblowing grounds and victimisation. Mr Saad relied on the grievance about the terrorist comment as both a protected disclosure (for whistleblowing purposes) and a protected act (for victimisation purposes).

Mr Saad’s claims were rejected by the Tribunal on the basis that he had not made the protected disclosure/act about the terrorist comment in good faith.  The Tribunal  found that the predominant purpose of Mr Saad’s grievance had been to delay and avoid the performance process.

Mr Saad appealed to the EAT.  He argued that the tests for good faith in making a protected disclosure under the whistleblowing legislation and race discrimination victimisation are different. The question for racial victimisation is whether the worker has acted honestly in giving the evidence which they have relied on as a protected act. The existence of an ulterior motive, whilst potentially relevant, should not be the focus of any enquiry.

The EAT upheld the appeal. The EAT found that 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, such as to deflect criticism of performance, is not the focus. In Mr Saad’s case, the EAT found that he had subjectively believed that the alleged terrorist comment had been made.  Mr Saad he had therefore made the allegation against his programme director honestly and so had not made it in bad faith.

Implications:  This decision is unhelpful for employers as it makes it easier for employees to establish a protected act. It will be difficult for employers to rely on an employee’s ulterior motives to undermine their claim that a protected act was in good faith. The key to whether there is whether the worker honestly believes the information that forms the protected act, not their reasons for providing it.