Test for assessing bad faith in victimisation claims is honesty not ulterior motive

Saad (S) when facing the likelihood that he would fail the assessment required to qualify as a surgeon, raised a grievance regarding a race discriminatory remark.
treasury

Under S.27 of the Equality Act 2010 an allegation of victimisation will not be protected if it is made in bad faith. In Saad v Southampton University Hospitals NHS Trust, Saad (S) when facing the likelihood that he would fail the assessment required to qualify as a surgeon, raised a grievance regarding a race discriminatory remark. The ET held there were no reasonable grounds for S believing the allegation to be true but accepted that S had subjectively believed that it was. However, S had an ulterior motive, i.e. the assessment would be postponed, and the allegation had not been made in good faith. Therefore, as the allegation had been made in bad faith, his victimisation claim failed. The EAT upheld S’s appeal. The specific question raised by the bad faith requirement under S.27 is whether the Claimant had acted dishonestly. Motivation could be part of the relevant context but, in this case, the finding that S subjectively believed the allegation to be true was sufficient to counter the suggestion that he had acted in bad faith and his victimisation claim must be upheld.


This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented, and judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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