UK: Victimisation claim: was the employee acting honestly?

Victimisation occurs when a person (A) subjects another person (B) to a detriment because either:
• B has done a “protected act”, i.e. made an allegation that A has breached discrimination legislation
• A believes B has done/ may do a protected act
But giving false evidence or information or making a false allegation is not a protected act if this was given or made in bad faith.

Mr Saad (S) was training to be a consultant surgeon. He raised a grievance alleging he had suffered racial or religious discrimination. The Tribunal decided that the allegation was false, and that, although he subjectively believed the alleged racist comment had been made, that belief was not reasonable. It also concluded he had raised the grievance in order to deflect performance issues, and therefore found he had acted in bad faith.

The EAT allowed the appeal. Because the allegation was made honestly, the employee had not made it in bad faith. It confirmed that employees can claim victimisation even where the allegation of discrimination is made for an ulterior motive – provided they acted honestly. The EAT also said that if the employee has an ulterior motive, this could impact on the amount of compensation awarded.

Comment:
The key issue is whether the employee acted honestly in giving the information or making the allegation relied on as a protected act.
For employers to succeed in defeating a victimisation claim under discrimination legislation, they must establish that:
• the evidence, information or allegation of discrimination the employee made was false, and
• the employee gave that evidence, information or made that allegation dishonestly
The more obviously false an allegation is, the more likely it is that a tribunal will find it was not made honestly – but the onus will be on the employer to prove this.

Saad v Southampton University Hospital NHS Trust UK EAT/0276/17/JOJ
https://assets.publishing.service.gov.uk/media/5b7d3eeee5274a44da560eab/Mr_R_A_Saad_v_Southampton_University_Hospitals_NHS_Trust_UKEAT_0276_17_JOJ.pdf