Saad v Southampton

Hello and welcome back to you weekly case law update. Last week, we had our monthly employment law update with features on the Boris Johnson burqa scandal, joint employment and working time. Before that, our previous case law update concerned agency workers. This week we have two cases for you, one on victimisation and another on limitation dates.

Before starting this week’s update, we would like to remind you there is still one week to use your Bribery E-Learning Course regular reader/client discount. The course is aimed at helping businesses educate staff to reduce the risk of bribery related issues. To get your 75% discount use the code PJHARM when checking out.

Our first case is about victimisation arising from race discrimination. Like harassment, victimisation is a type of prohibited conduct and is defined in Section 27 of the Equality Act 2010 as an employer subjecting an employee to a detriment because the employee committed a protected act, or, the employer thought the employee made or is going to make, a protected act.

Detriments can include bad references, being denied training or promotions, being bullied and even excessive scrutinization of conduct or capability.

Protected acts are linked to discrimination matters and can include bringing discrimination related ET proceedings, giving evidence in discrimination ET proceedings, raising a grievance or making an allegation that someone has committed an act of discrimination or giving evidence to support that allegation.

If the act is untrue but made in good faith, any detriment suffered will still be an act of victimisation. However, if the act is raised in bad faith (knowingly false) then it is not a protected act for the purposes of Section 27.

Therefore, the question this week is:

Does an employee need to be dishonest for a protected act to be made in bad faith?

Mr Saad, the Claimant, was a Sudanese national and a registrar and trainee surgeon for the Southampton University Hospitals NHS Trust, the Respondent. The Claimant was due for a performance assessment that he believed would go badly.

The Claimant raised a grievance relating to an alleged racist remark made towards him four years ago. He alleged that a teaching surgeon had said he was “a terrorist looking person, similar to the doctor who attempted the 2007 Glasgow airport bombing.” This remark was made in front of other staff during an operation. The grievance was not upheld.

The Claimant then asked to be moved to a different hospital. This was rejected and the Claimant initiated an ET claim for victimisation, the detriment being not allowing the transfer with the protected act being the grievance.

The ET rejected the claim. It held the Claimant did not make a protected act because the grievance was done in bad faith – to postpone his assessment. However, the Tribunal’s reasoning was because the grievance was not done in good faith he could not have reasonably believed it to be true.

The Claimant appealed and the EAT allowed the appeal. It held the ET had applied the wrong test. Whilst the protected act might not have been made in good faith, it was held that the Claimant did unreasonably believe his grievance was true. Therefore, the grievance could not have been made in bad faith as the Claimant did not knowingly make a false accusation. The victimisation claim was allowed.

Takeaway point:

Yes, an alleged protected act will not be protected if it is made in bad faith. If there is an ulterior motive for permitting an act, or, the act is not strictly speaking made in good faith, that does not mean the act is made in bad faith.

For employers, this could lead to more stalling tactics by employees under disciplinary or capability procedures with tenuous grievances being raised. Should this happen it is best to tread carefully and seek advice to avoid ending up like the employer in this case.