Nicholas Toure v Ken Wilkins Print Limited

A false discrimination allegation made in bad faith is not a protected act for victimisation purposes under section 27 of the Equality Act 2010. Where an employee makes a separable and improper threat to abandon a grievance or legal proceedings in return for promotion or increased pay, dismissal for that threat is not dismissal because of a protected act.

An Employment Tribunal may assess credibility and rely on hearsay material. It may find an allegation untrue where that conclusion is supported by its assessment of the evidence.

The claimant, a black African Muslim employed as a forklift truck driver and warehouse operative, alleged that a colleague had used racist language. His employer investigated and rejected the grievance. While an appeal against that decision was pending, the claimant told two managers that he would not pursue the appeal or legal proceedings if he received promotion and a pay increase.

After he abandoned the appeal, the employer summarily dismissed him for several matters of misconduct, including those statements. The Employment Tribunal sitting at Nottingham dismissed claims of race and religious discrimination, harassment and victimisation in a judgment sent on 23 May 2022. The claimant appealed, principally challenging the Tribunal's findings about the racism allegation and its treatment of the victimisation claim arising from dismissal.

1. Appeal dismissed. The Employment Tribunal was entitled to find the claimant's evidence wholly unreliable and to reject the allegation of racial abuse. Although its conclusion was implicit rather than express, its description of the allegation as fictitious, combined with its credibility findings and acceptance of the witnesses' denials, supported the finding that no racial abuse occurred.
2. An Employment Tribunal may rely on hearsay because strict evidential rules do not apply. In the circumstances, it was open to the Tribunal to accept the hearsay denials after rejecting the claimant's evidence.
3. The Tribunal's stated reason for rejecting the victimisation claim was erroneous insofar as it said there was no reliable evidence of detriment: dismissal was plainly a detriment. That error was immaterial because the underlying allegation of racial abuse was, on the Tribunal's findings, false and necessarily made in bad faith. It was therefore excluded from protected-act status by section 27(3) of the Equality Act 2010.
4. The claimant's statements that he would abandon his appeal and legal proceedings in exchange for promotion and increased pay were separable from any protected act. On the findings, they amounted to an implied and inappropriate threat, described as tantamount to blackmail. The dismissal was for that separable conduct, which was an additional valid ground for dismissal, rather than because of a protected act.
5. Although the Tribunal had omitted express legal analysis of those points, its findings of fact permitted no successful victimisation claim. Its dismissal of that complaint was therefore upheld.

• Employment Appeal Tribunal: Appeal dismissed in [2023] EAT 163.
• Employment Tribunal, Nottingham: In a judgment sent on 23 May 2022, dismissed claims of race and religious discrimination, harassment and victimisation.