G Kalu & Anor v University Hospitals Sussex NHS Foundation Trust (formerly Brighton and Sussex University Hospitals NHS Trust)

A false allegation is excluded from protected-act status by section 27(3) of the Equality Act 2010 only where it was made in bad faith, meaning dishonestly and without belief in its truth. If that issue is material, the claimant must be fairly cross-examined on it as a distinct matter. General questioning about motivation is insufficient.

Victimisation also requires proof that the protected act was the reason for the impugned treatment. A tribunal may find that the decision-maker acted because of related but distinct conduct or circumstances, where that conclusion is factually sustainable. A procedural error affecting protected-act status does not unsettle a separate, determinative causation finding.

The claimants, consultant obstetricians and gynaecologists, were dismissed for conduct after participating in a collective grievance concerning a colleague. They brought claims including victimisation, protected-disclosure detriment, race discrimination, unfair dismissal and wrongful dismissal.

The Employment Tribunal held that the collective grievance was a false allegation made in bad faith and therefore was not a protected act under section 27(3) of the Equality Act 2010. It also considered the material victimisation complaints on the assumption that the grievance was protected, and dismissed them because the external investigator's report was not caused by any protected act. The tribunal found procedural unfairness in the dismissals but reduced compensation to nil.

The appeal challenged the bad-faith finding and the dismissal of the victimisation complaints relating to the investigator's report.

1. Appeal dismissed overall. The EAT upheld the challenge to the Employment Tribunal's bad-faith finding, but that error did not affect the determinative dismissal of the victimisation complaints.
2. The respondent's pleading, read as a whole, adequately gave notice that it alleged bad faith in relation to the January 2015 collective grievance. In this context, bad faith means dishonesty: the maker did not believe the allegation true.
3. However, the tribunal acted unfairly in deciding that the claimants had acted in bad faith when their honest belief in the allegation had not been fairly put to them in cross-examination. There is no absolute rule against deciding an unput allegation, but dishonesty is serious. General questioning about motivation and related conduct did not fairly raise the distinct issue required by section 27(3) of the Equality Act 2010.
4. The error invalidated only the conclusion that the collective grievance was not a protected act because it was made in bad faith. The tribunal had independently assumed that it was protected when considering the relevant victimisation complaints and had dismissed them on causation.
5. That causation conclusion was adequately reasoned and open to the tribunal. The investigator found a case to answer because of her considered assessment of the grievance and surrounding facts, rather than because the claimants had made a protected act. Following Kong, separability is a factual inquiry into the decision-maker's real reason, not a free-standing legal rule. The tribunal's reference to Pasab was illustrative and introduced no unargued legal point.
6. The procedural irregularity did not taint the remainder of the proceedings. The Employment Tribunal's decision therefore stood, save that its bad-faith finding and consequent protected-act conclusion concerning the January grievance could not stand.

• Employment Appeal Tribunal: Appeal dismissed overall. The tribunal's finding that the January 2015 grievance was made in bad faith under section 27(3) of the Equality Act 2010 could not stand, but its dismissal of the victimisation complaints stood.
• Employment Tribunal: Dismissed the discrimination, victimisation, protected-disclosure and wrongful-dismissal complaints. It found the dismissals procedurally unfair in one respect, but reduced compensation to nil.