News & Insights

A case of bad faith

We focus on the role of bad faith in a victimisation claim.

The Equality Act 2010 confirms that giving false evidence or information, or making a false allegation, is not a protected act (and therefore the employee cannot bring a victimisation claim) if the evidence or information is given, or the allegation is made, in bad faith.  In a recent case the Employment Appeal Tribunal (EAT) had to determine the correct test of what amounts to “bad faith” in such circumstances.

Mr Saad was a trainee cardiothoracic surgeon, who in 2011 faced the possibility that he would fail the necessary assessment required to qualify as a surgeon.  During his training, concerns about his performance had been discussed at the hospital and Mr Saad had also stated that he had been subjected to unfair treatment.  As these performance issues came to a head, Mr Saad raised a grievance relating to an alleged racist remark made 4 years earlier.  His grievance was rejected by the hospital and he was removed from the training programme.

Mr Saad issued tribunal proceedings and claimed that he had suffered victimisation, a detriment as a result of making a protected disclosure (whistleblowing) and had been unfairly dismissed.  At the time of the claim the legislation on protected disclosures required the disclosure to have been made in good faith in order for it to be protected (this has since been replaced by a reasonable belief test).  The Employment Tribunal (ET) found that Mr Saad had not acted in good faith as he had raised the allegations with the intention of getting a performance assessment postponed meaning he had an ulterior motive.  The ET dismissed his claims relating to both the protected disclosure and victimisation on this basis.  He appealed the decision relating to his victimisation claim on the grounds that the ET should have applied a different test to the victimisation claim where the evidence relied on needs to be false in order for the claim to fail.

The EAT upheld Mr Saad’s appeal stating the bad faith test for victimisation purposes is different to the good faith test used in whistleblowing claims.  The test for the victimisation claim was whether Mr Saad acted honestly in raising the allegations, the ulterior motive should not be the focus. The EAT found that, as Mr Saad had subjectively believed his discriminatory allegations were true (despite there being no reasonable grounds for this belief), he had acted honestly and not in bad faith and therefore his victimisation claim was upheld.

Employers should note that this is an important decision on clarifying the bad faith test. Even if an employee wrongly believes the allegations they have made are true, if they have acted honestly in raising those allegations they will be protected from victimisation, even if there is an ulterior motive present.