VICTIMISATION DISCRIMINATION – Other forms of victimisation
Victimisation – section 27(3) Equality Act 2010
In 2011, when facing the likelihood that he would fail the assessment required to qualify as a Consultant Cardiothoracic Surgeon, the Claimant raised a grievance regarding a (race) discriminatory remark alleged to have been made some four years previously. Although the ET held there were no reasonable grounds for his believing the allegation to be true (relevant to the Claimant’s protected disclosure claim), it accepted that he had subjectively believed that it was. In raising this matter as a grievance, however, the ET found that the Claimant had intended this would mean the assessment – which he knew would go badly for him – would be postponed. This, the ET concluded, meant he had not raised the allegation in good faith, as was then a requirement for the purposes of a protected disclosure claim. The ET duly dismissed the Claimant’s whistleblowing complaints in this regard. Turning to the complaint of victimisation, in which the Claimant relied on the same allegation as a protected act for the purposes of section 27 Equality Act 2010, the ET concluded that its earlier findings in respect of the protected disclosure claim also meant the victimisation claim failed. Specifically, it was fatal that it had found that the Claimant’s belief was unreasonable and that he had an ulterior motive, which meant he had not made the allegation in good faith. Those findings, the ET ruled, meant that the Claimant had acted in bad faith for the purposes of subsection 27(3) EqA.
The Claimant appealed, arguing the ET had erred in reading across from its findings in respect of the protected disclosure claim when determining the complaint of victimisation. Moreover, as the ET had found he had subjectively believed the truth of the allegation, it was not made in bad faith, regardless whether he had an ulterior motive.
Held: allowing the appeal
The ET had erred in law in reading across from its finding of absence of good faith for the purposes of the Claimant’s protected disclosure claim to its determination of bad faith under section 27(3) EqA. The two statutory contexts were different and the ET had failed to engage with the specific questions raised by subsection 27(3) EqA. It had made no express finding as to whether the allegation was false (although that was probably implicit) and, more significantly, it had failed to tackle the specific question raised by the bad faith requirement under subsection 27(3) which, absent other context, had a core meaning of dishonesty (observations of Auld LJ at paragraph 41 Street v Derbyshire Unemployed Workers’ Centre [2005] ICR 97 CA, applied). Motivation could be part of the relevant context but, in determining bad faith for the purposes of subsection 27(3) EqA, the primary focus was the question of the employee’s honesty.
Although the assessment of bad faith was for the ET, in the present case the finding that the Claimant subjectively believed the allegation to be true was sufficient to counter the suggestion that he had acted in bad faith. On the ET’s other findings, that meant the claim of victimisation in this regard must be upheld.
Citations:
[2018] UKEAT 0276 – 17 – 2208
Links:
Jurisdiction:
England and Wales
Employment
Updated: 07 June 2022; Ref: scu.625452