Can an employee who makes false allegations of discrimination rely on them when bringing a claim of victimisation arising out of those allegations? Will Clift looks at a recent EAT decision which gives the answer.
Under the Equality Act 2010, victimisation occurs when a person subjects another to a “detriment” (meaning negative treatment) because B has done a “protected act”.
If an employee makes a complaint that they have been discriminated against (whether formally or informally), then this will amount to a protected act under the Equality Act.
However, if the allegation made by the employee turns out to be false, then it will not amount to a protected act if it was made in “bad faith”.
In the case of Saad v Southampton University Hospitals NHS Trust, the EAT has given some useful guidance on what amounts to bad faith in such cases.
S was employed by an NHS Trust as a cardiothoracic surgeon, and was also being trained by Wessex Deanery. The Trust began to develop serious concerns about S’s performance.
At around the time such concerns were being raised, S was told by a colleague that the Deanery’s training director had made racist comments about him, allegedly likening S (who was from a Sudanese background) to “…the doctors who carried out the terrorist attack in Glasgow airport”.
When the concerns with S’s performance came to a head, he raised a grievance which included reference to the training director’s alleged racist comments.
S’s employment was later terminated. He brought a claim, alleging that he had been victimised for raising the allegations of racism referred to above.
The Employment Tribunal found that the training director did not make the comments complained of by S. It determined that, because S had an ulterior motive for raising the allegations (namely to delay the performance review process), he had made the allegations in bad faith and that his victimisation claim (which would otherwise have been successful) could therefore not succeed.
S appealed to the EAT, who overturned the Tribunal’s decision. The primary question when determining if a false allegation has been made in bad faith is whether the claimant honestly believed that the allegation was true. As the Tribunal had found that S did believe the allegations were true, the EAT concluded that they must have been made in good faith, and his victimisation claim succeeded.
This case should serve as a reminder that, even if allegations raised by an employee are false (as they were in S’s case) that does not necessarily mean that those allegations cannot form the basis of a victimisation claim.
If such allegations are false, a claimant will only have to show that they honestly believed in the truth of the allegations in order to convince a Tribunal that they have carried out the protected act that is necessary to bring a victimisation claim.
Further, the fact a claimant had an ulterior motive in making the complaint is unlikely (on its own) to amount to bad faith. Employers defending victimisation claims would therefore be better advised to try and demonstrate that no reasonable person could have honestly believed that the allegations being made were true, as this should make it easier to convince a Tribunal that the claimant in question did not have an honest belief in their truth.