The Employment Appeal Tribunal has held that the primary question to be asked when considering bad faith for the purposes of a victimisation claim is the employee’s honesty.
The employee, in this case, was a trainee surgeon. Various issues arose during his training. The employer and organisation who carried out his training had performance concerns. He considered he was the subject of unfair treatment. In one instance, he said that he was told that his training programme director had allegedly made jokes about his ethnic background, allegedly describing him as “… a terrorist looking person”. He also alleged that the programme director had likened him “… to the doctors who carried out the terrorist attack in Glasgow airport in 2007”.
He raised a grievance, which included the programme director’s alleged terrorist comment. He alleged this was abusive and discriminatory on racial or religious grounds. The grievance was ultimately rejected and he was subsequently removed from the training programme. In addition, his employment was terminated.
He then brought claims for unfair dismissal on whistleblowing grounds and victimisation. He relied on his grievance about the terrorist comment as both a protected disclosure and a protected act. The detriment in the victimisation complaint was failing to allow him to return to a particular work unit. He did not rely on his dismissal in this regard.
The tribunal rejected the claims. In relation to whistleblowing, it found that he subjectively believed that the programme director had made the alleged terrorist comment but found that this belief was not reasonable. It further found that the predominant purpose to his grievance had been to delay and avoid the performance processes that he faced, and so had not been made in good faith.
In relation to victimisation, the tribunal concluded that he had made a false allegation in bad faith.
He then appealed in relation to victimisation. He contended that the good faith tests for whistleblowing and victimisation were different.
Allowing the appeal, the Employment Appeal Tribunal said that the bad faith test for victimisation purposes is different to the good faith test that used to apply in whistleblowing claims. The primary question for victimisation purposes, it said, is whether the worker has acted honestly in giving the evidence or information, or in making the allegation, that is relied on as a protected act. The existence of an ulterior motive, while potentially relevant, it said, is not the focus of the enquiry.
Case reference: Saad v Southampton University Hospitals NHS Trust