Victimisation, the protected act, and bad faith

Protection against victimisation is a key component of the Equality Act 2010. As UK employment lawyers will explain, it offers protection to an employee who ‘does a protected act’. The term protected act will be familiar to top employment solicitors and covers bringing a claim or making a complaint about discrimination or supporting a colleague in doing so. It protects those who allege that the Equality Act 2010 has been breached by an employer, and also protects someone who the employer believes has done or may do a protected act. The provisions should give an employee the confidence to bring a claim or to support another employee in making a claim, knowing that the employer will be held to account for any detrimental treatment focussed on the employee for doing so.

One of the key provisions of the law on victimisation is that the employee must not act in ‘bad faith’ – that is if the employee provides false evidence or information or makes a false allegation, this will not be a protected act if the false evidence, information or allegation has been made in bad faith

False information does not always mean bad faith

S.27(3) Equality Act 2010 which contains the provision relating to bad faith suggests that false information, evidence and allegations will not always be made ‘in bad faith’ and so may still be a protected act. Employment claim solicitors should be aware of how this provision works in practice, in order to advise clients accordingly.

The Employment Statutory Code of Practice elaborates on this, explaining that "…if a worker gives evidence, provides information or makes an allegation in good faith but it turns out that it is factually wrong, or provides information in relation to proceedings which are unsuccessful, they will still be protected from victimisation"

The key then is to establish the motive of the person providing the false information, evidence or allegation. If they have provided information which is incorrect, it will still be a protected act, provided the information was given in good faith.

Examples of good faith and bad faith

Most recently, the Employment Appeal Tribunal has given guidance on the interpretation of s.27(3) in the case of Saad v Southampton University Hospitals NHS Trust. The claimant raised a grievance relating to a racially discriminatory remark made to him some 4 years earlier. He raised the grievance at a point in time when he was likely to fail an assessment relating to his qualification as a Consultant Cardiothoracic Surgeon. The Employment Tribunal accepted that the claimant subjectively believed the allegation was true but found that in raising it at the point in time that he did, he intended to delay the assessment. The ET concluded that he had therefore acted in bad faith, and so could not rely on the grievance as a protected act. It reached this conclusion after first determining that he had not acted in good faith for the purposes of making a protected disclosure under the whistleblowing legislation, and he had not therefore done a protected act under s.27(3).

The Employment Appeal Tribunal allowed the claimant’s appeal. There was no read across from the whistleblowing legislation to the Equality Act provision. This was an error of law by the ET which should have concentrated on whether the claimant had believed in the truth of the allegation he had made. His motivation for making the allegation was not relevant to the question of whether he had acted in bad faith, and so whether he had in fact done a protected act. London employment solicitors will be interested to note that the EAT did not say motivation could never be relevant in the determination of whether an employee had acted in good or bad faith, but that there were ‘good policy reasons’ for being cautious of taking account of any collateral motive when considering a victimisation claim and whether there had been a protected act.

The Saad case follows previous cases, particularly brought under the old Race Relations Act 1976 in which the EAT had determined that the employee in question had acted in bad faith and so could not rely on a protected act. In HM Prison Service and Others v Ibimidun the employee had brought tribunal proceedings solely to harass colleagues and his employer. In that case, there was no protected act. Equally, there was no protected act in the case of an employee who had suffered a limited amount of less favourable treatment relating to a complaint that had been made falsely and in bad faith (Elegbede v Nexen Petroleum UK Ltd).

The importance of the protected act

The ‘protected act’ is fundamental to the victimisation claim, so it’s important for anyone specialising in employment law for employees to recognise where someone may have made a false allegation, honestly believing in the truth of the allegation, even if their motivation for making the allegation at the time when they did is questionable. In this case, they will still in all likelihood have made the allegation in good faith and be able to rely on the protected act. This differs to someone who has knowingly made a false allegation.

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