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Case law: Employee with ulterior motive who alleges victimisation can win claim, provided they honestly believe their allegation

Employers dealing with allegations of victimisation by an employee with an ulterior motive should ensure they can show the employee’s allegations were also made in bad faith (that the alleged victim did not honestly believe them) – or risk losing the victimisation claim.

November 2018

This update was published in Legal Alert - November 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A trainee surgeon raised a formal grievance after continuing concerns about his performance meant he may not qualify. One of his allegations was that four years earlier, a senior surgeon had made racist comments about his ethnic background. The trainee surgeon’s grievance was not upheld and his employment was later terminated.

One of his claims was for victimisation. A victimisation claim will fail if the victim’s allegation is false, and made in bad faith.

The Employment Tribunal found that the grievance had primarily been brought to delay the consequences of the trainee’s performance issues. The trainee had, therefore, been acting in bad faith and there had been no victimisation.

The Employment Appeal Tribunal disagreed. The key question was whether the alleged victim acted honestly. The fact a victim has ulterior motives for making allegations of victimisation can be relevant to the issue of bad faith, but it does not automatically mean they have not acted honestly.

It found that the trainee surgeon had honestly believed the senior surgeon had made the racist comment. He had therefore made the allegation honestly, not in bad faith, and there had been victimisation.

Operative date

  • Now

Recommendation

  • Employers dealing with allegations of victimisation by an employee with an ulterior motive should ensure they can show the allegations were also made in bad faith – that the alleged victim did not honestly believe them – or risk losing a victimisation claim.

Case ref: Saad v Southampton University Hospitals NHS Trust, UKEAT/0276/17

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