Victimisation and bad faith – case update
Employees and workers are protected against being treated detrimentally (victimised) because they have carried out a 'protected act'. 'Protected acts' include making complaints of discrimination, pursuing a discrimination claim and giving evidence in a discrimination claim. However, a false allegation made in bad faith doesn't count as a protected act. A recent case confirms that this 'bad faith' exception is very narrow, highlighting the need for employers to tread very carefully when an individual has made complaints of discrimination.
Mr Saad, the Claimant in this case, was a trainee surgeon who raised a grievance alleging that a supervisor had made jokes about his ethnic background. His grievance was rejected and his employer subsequently dismissed him. He brought an Employment Tribunal claim alleging victimisation (among other claims). The Employment Tribunal rejected this claim, stating that although he had genuinely believed that his supervisor had made the jokes, this was incorrect, his belief was unreasonable and his complaint was motivated partly by a desire to protect himself in the face of criticism of his performance. As a result, his allegation of discrimination had been made in bad faith and was not a protected act.
The Employment Appeal Tribunal overturned this ruling. It stated that, when deciding whether a false allegation of discrimination was made in bad faith, the key question is whether the individual acted honestly in making it. In most cases, if the individual believed the allegation was true, that will be enough to show that it was not made in bad faith, even if the individual had an ulterior motive for making it.
This case confirms that, in all but exceptional cases, a discrimination complaint (even if it's incorrect) will be a protected act, and could enable the individual to bring a victimisation claim. Employers faced with discrimination complaints need to tread carefully even if they suspect the individual is making complaints to frustrate a performance-management or disciplinary process, as in many cases this won't be a defence to a victimisation claim.
For further information, please contact Head of Employment Jane Amphlett.