Saad was employed by Southampton University Hospitals NHS Trust. In 2011, he raised a grievance, alleging that a racist remark had been made about him four years earlier. At the time of raising the grievance, there were concerns around his performance and it was anticipated that he would fail an upcoming assessment.
Saad's grievance was not upheld and his employment with the Trust was terminated. He subsequently presented claims to the Employment Tribunal for victimisation, alleging that the grievance was a protected act. Saad also raised a claim of whistleblowing but that was not considered by the EAT and is not covered in this article.
Victimisation occurs where a person is subjected to a detriment because they have done, or it is believed they have done, or may do, a 'protected act'. A protected act can be any one of the following:
If the allegation constituting the protected act is false, it will not be a protected act if it was made in bad faith.
The ET found that the allegation was false, but that Saad subjectively believed it to be true. However, they also found that the grievance had been brought with the ulterior motive of postponing the upcoming assessment. On the basis of these findings, the ET concluded that Saad had acted in bad faith and dismissed his claim for victimisation. Saad appealed.
'Bad faith' for the purposes of victimisation has a core meaning of dishonesty. Whilst motivation could be part of the relevant context, the primary focus in determining 'bad faith' was the question of the employee’s honesty.
The ET's finding that Saad subjectively believed the allegation to be true meant that he had acted honestly. The fact that he had an ulterior motive in making the allegation did not mean that he had acted in bad faith.
This decision provides important clarification on what an employer must establish when resisting a victimisation claim on the basis of bad faith. In order to defeat a claim on these grounds, an employer must show:
This case makes it clear that showing an employee had an ulterior motive for doing a protected act will not in itself be sufficient to defeat a victimisation claim.