Does a Claimant have to act dishonestly for an allegation or evidence not to be a protected act under s27(3) of the Equality Act 2010?
Yes, held the EAT in Saad v Southampton University Hospitals NHS Trust.
The Claimant, a surgeon, raised a grievance relating to an alleged racist remark four years previously with a view to having an assessment of his skills postponed. The tribunal dismissed his subsequent claims for detriments for making a protected disclosure and victimisation, both arising from his grievance.
The EAT held that the tribunal had erred by ‘reading over’ its findings under the (pre-June 2013) test for a disclosure being made ‘in good faith’, finding (correctly) that it was not (the motive was to postpone an assessment), and that the Claimant did not have a ‘reasonable belief’ in the truth of the disclosure (as was then needed). The tribunal found that the Claimant subjectively believed that his disclosure was true.
When considering the victimisation complaint from the same act, the tribunal erred by failing to apply the different test in s27(3) of the Equality Act. That test considers whether the evidence or allegation is true or false, and if it is false, the tribunal must decide if it was given in bad faith i.e. whether the evidence was given honestly or not.
In this case, as the tribunal held that the Claimant subjectively (albeit unreasonably) believed his allegation was true, it was able to uphold the victimisation complaint without remitting the case to the tribunal.