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Fictitious allegation did not give rise to victimisation protection

on Friday, 16 February 2024.

The Employment Appeal Tribunal (EAT) has found that a Tribunal was entitled to conclude that a Claimant had not been victimised, even though its reasoning for rejecting the victimisation claim was wrong.


In Toure v Ken Wilkins Print, the claimant was employed by the respondent as a forklift truck driver. He alleged that he had been subjected to racial abuse by a colleague. The matter was investigated and his grievance was rejected. The claimant appealed against this finding but also told two managers that he would drop his appeal if he was promoted and given a pay rise.

He subsequently abandoned the appeal but was in any event dismissed for misconduct relating to a number of issues with his conduct.  One of the respondent's reasons for dismissing the claimant was because of his attempt to use the grievance procedure as leverage to secure a promotion and pay rise, which the respondent said was tantamount to blackmail.

The claimant brought Tribunal proceedings including a claim for victimisation. He argued that he had been dismissed because he had made a complaint of race discrimination which had been the subject of the grievance. The Tribunal dismissed the claim, finding that the claimant had not suffered any detriment after raising his grievance. 

The claimant appealed to the EAT.

EAT decision

The EAT dismissed the appeal, despite identifying a flaw in the Tribunal's reasoning. The Tribunal had found there was no evidence that the claimant had suffered any detriment after raising his grievance. The claimant had argued that this was incorrect as the claimant's dismissal was a detriment in itself. 

The EAT agreed that it was valid to say that the claimant, having been dismissed, had indeed suffered a detriment. However, the relevant part of the Equality Act says that where an individual makes a false allegation, this will not be a protected act for the purposes of a victimisation claim if the allegation is made in bad faith. On this point, the EAT found that on the basis the Tribunal had found the allegation was fictitious, it must have been false and made in bad faith. It did not therefore qualify for protection. 

In addition, the EAT found that the implied threat the claimant made to his colleagues about dropping the grievance appeal was indeed tantamount to blackmail and was a separable conduct issue justifying the claimant's dismissal.

Learning points

This is a sensible decision from the EAT which serves as a useful reminder about the scope of victimisation protection, particularly where an individual seeks to access protection having made false allegations.

For more information or advice, please contact Helen Hughes in our Employment team on 020 7665 0816, or complete the form below.

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