Saad v Southampton University Hospitals NHS Trust

For the victimisation exception in section 27(3) of the Equality Act 2010, an Employment Tribunal must separately determine whether a false allegation was made in bad faith. It must not import the former whistleblowing requirements of reasonable belief and good faith under the Employment Rights Act 1996.

In this context, bad faith primarily concerns whether the employee acted honestly. A false allegation, an unreasonable belief, or a collateral motive may be relevant evidence, but none is by itself determinative. Where the Tribunal finds that the employee genuinely believed the allegation to be true, an ulterior purpose will not ordinarily establish bad faith.

The claimant, a specialist registrar training to become a consultant cardiothoracic surgeon, raised a grievance alleging that a consultant had made a discriminatory remark. He relied on that allegation both as a protected disclosure and as a protected act for his victimisation claim.

The Employment Tribunal dismissed the protected-disclosure claims. It found that the claimant subjectively believed the allegation but that his belief was unreasonable, and that his predominant purpose was to postpone an assessment and protect his career. It treated those findings as establishing that the allegation was false and made in bad faith under section 27(3) of the Equality Act 2010.

The appeal concerned whether the Tribunal had wrongly applied the former whistleblowing good-faith test to the statutory bad-faith exception for victimisation.

1. Appeal allowed. The Employment Tribunal erred by treating its findings on the protected-disclosure claim as dispositive of bad faith under section 27(3) of the Equality Act 2010.

2. The former requirements for a protected disclosure under the Employment Rights Act 1996 operated in a different statutory setting. A reasonable belief in the disclosure's content was already required. The additional good-faith requirement could therefore concern the worker's predominant motivation. That reasoning could not simply be read across to victimisation.

3. Under section 27(3), the Tribunal must first determine whether the evidence, information or allegation is false. If it is false, the Tribunal must then determine whether it was made in bad faith. The primary question at that stage is whether the employee acted honestly. The allegation's falsity, its evident implausibility and any collateral motive may be relevant context, but they do not replace the inquiry into honest belief.

4. The Tribunal made no express finding that the allegation was false and failed to decide whether the claimant had made it dishonestly. Its express finding that he subjectively believed it to be true meant that he genuinely held that belief. His ulterior purpose in raising it did not establish bad faith.

5. The dismissal of the victimisation complaint concerning the refusal to permit the claimant to return to the cardiothoracic unit was set aside. A finding that the complaint was made out was substituted. The matter was remitted to the Employment Tribunal to determine remedy unless the parties agreed it.

• Employment Appeal Tribunal: Allowed the claimant's appeal, set aside the dismissal of the relevant victimisation complaint, substituted a finding that it was made out, and remitted remedy.
• Employment Tribunal, Southampton: Reserved judgment sent to the parties on 8 June 2017. It dismissed the victimisation complaint after holding that the allegation was false and made in bad faith for the purposes of section 27(3) of the Equality Act 2010.