In Saad v Southampton University Hospitals NHS Trust, the EAT has ruled that the key question for deciding whether an allegation was made in bad faith is whether the claimant acted honestly in making the allegation. The motives of the claimant is making the allegation are a less relevant consideration for the tribunal.

Mr Saad was a trainee cardiothoracic surgeon, employed by Southampton University Hospitals NHS Trust. His employer and the training body responsible for him had concerns about his performance. Mr Saad raised concerns in a grievance that the director of his training programme had made racist jokes about him, described him as a "terrorist-looking person" and likened him to the doctors who carried out the terrorist attack on Glasgow airport. The grievance complained that these comments were discriminatory on racial or religious grounds. The NHS Trust did not uphold the grievance and Mr Saad's employment and training were both subsequently terminated on performance grounds.

Mr Saad brought claims for unfair dismissal on the basis of whistle-blowing and for victimisation. He argued that his complaint concerning the comments comparing him to terrorists were both a protected disclosure (for the purposes of the whistle-blowing claim) and a protected act (founding his victimisation claim).

The tribunal did not uphold his claims. It found that Mr Saad had subjectively believed that the training programme director had made the comments but that it was not reasonable for him to believe this; the whistle-blowing claim therefore failed. Disclosures made before 25 June 2013 which were made in bad faith were not protected under the whistle-blowing legislation.

The tribunal found that Mr Saad has raised his complaints in bad faith with the main purpose of the grievance being to delay the performance-related processes. The tribunal read across this bad faith finding to the victimisation claim in determining that the complaints in the grievance could not be a protected act. The tribunal found however that (if it was wrong on this point), the NHS trust had not proved that the complaints were not a significant influence on the decision to subject the claimant to detriments.

In his appeal to the EAT, Mr Saad argued that the good faith tests for whistleblowing and victimisation were not the same. The EAT allowed the appeal. It clarified that the primary question on good / bad faith in a victimisation claim is whether the worker has acted honestly in carrying out the protected act. The employee may have an ulterior motive for making a complaint but this should not be the focus of the tribunal's enquiry. The EAT pointed out that under the old whistle-blowing legislation, a tribunal would first consider whether the claimant reasonably believed the concerns to be true and then go on to consider whether they were made in bad faith. In contrast, in victimisation claims, the tribunal need not consider the truth of the allegations before it considers whether there is bad faith. The tribunal should therefore focus on whether the complaints are made honestly. The EAT made clear that the ulterior motives of the claimant may be relevant in some cases, but this should not be the focus of the enquiry.

Because the tribunal had found that Mr Saad did believe the comments had been made, the EAT held that he had acted honestly in raising these complaints, despite his ulterior motive. The EAT substituted a finding of victimisation.

Employers should be aware that a victimisation claim under the Equality Act can be brought when a claimant has been subjected to a detriment for doing something connected to the Equality Act, for example, raised an internal complaint or brought a tribunal or court claim relating to the Equality Act, or been a witness in relation to someone else's discrimination complaint or claim. As this case shows, raising complaints which are honestly believed for the purpose of avoiding disciplinary or performance proceedings will not necessarily stop the complaints being protected.

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