UK Employment Law case updates - September 2018

By Sam Rayner, Ian Hunter, Elizabeth Lang, James Froud,

10-2018

Employment Law case updates - September 2018

  1. Bad faith equated with dishonesty in victimisation claims
  2. No disability discrimination in delayed ill-health retirement procedure

Bad faith equated with dishonesty in victimisation claims

Saad v Southampton University Hospitals NHS Trust (Employment Appeal Tribunal)

The EAT has clarified that whether a claimant’s “protected act” (such as a complaint of discrimination under the Equality Act 2010) is made in bad faith, and so cannot be relied upon for the purposes of a victimisation claim, depends primarily on their subjective belief in the veracity of the evidence, information or allegation constituting such act; not on the potential existence of an ulterior motive underlying it.

In this case, an employee raised a grievance alleging racial or religious discrimination. This led to the postponement of a pending performance assessment, scheduled by his employer in line with its ongoing concerns. His grievance was ultimately rejected, he was removed from his training programme and dismissed. He initiated a victimisation claim before the Employment Tribunal, relying on the grievance as the necessary “protected act” leading to the detriment suffered. However, the ET dismissed his claim, finding that whilst he subjectively believed he had been subject to discrimination when filing the grievance, its predominant purpose was to delay and avoid the performance proceedings to which he was subject. The existence of this ulterior motive meant that his “protected act” had been made in “bad faith”, which inhibits a victimisation claim under the terms of the Equality Act 2010. The employee appealed.

The EAT allowed the appeal, holding that considerations of “bad faith” in the context of victimisation claims should focus primarily on whether the claimant’s protected act (such as an allegation of discrimination) was founded on an honest, subjective belief as a matter of fact. Ulterior motives may be relevant, but should not generally be determinative or central to a tribunal’s enquiry. Finding that the claimant had genuinely believed in the truth of his allegation, the EAT was satisfied it had not been made in bad faith and substituted a finding of victimisation.

This decision may have strategic implications for employers seeking to respond to victimisation claims. Those who wish to argue that a “protected act” was made in bad faith should no longer focus on the rationale behind it; instead a factual assessment of whether the potential claimant could have reasonably believed in the veracity of the relevant allegation(s), evidence or information should be preferred.

No disability discrimination in delayed ill-health retirement procedure

Dunn v Secretary of State for Justice and anor (Court of Appeal)

The Court of Appeal has confirmed that the EAT was entitled to hold that claims of disability discrimination could not succeed following the application of an unreasonable and unfairly delayed ill-health retirement scheme, where such delay was primarily due to individual incompetence and procedural deficiencies rather than the claimant’s disability.

In this case, a prison inspector who had suffered from depression and a serious heart defect brought claims of disability discrimination against his employer following his application for ill-health early retirement under its internal procedure, which he considered had been unreasonably and unnecessarily delayed. The ET accepted that the poorly handled process met the statutory conditions for claims of direct disability discrimination and discrimination arising from disability.

On appeal, the EAT disagreed. Regarding the ET’s finding of direct disability discrimination, it stressed the importance of considering the relevant decision maker’s thought processes and subjective motivation; the mere presence of unreasonable treatment – which in this case appeared to be due to staff incompetence and procedural flaws in an ‘arcane and unwieldy process’ – did not equate to less favourable treatment because of a disability. The EAT also rejected the claim of discrimination arising from disability due to the absence of the necessary causal link between the claimant’s disability and his detrimental treatment. It proceeded to substitute its findings rather than remit the case to the ET for determination; a decision which was accepted by the CA on further appeal.

This outcome highlights the importance of claimants in direct discrimination claims – save in cases involving inherently or patently discriminatory treatment or measures – evidencing a causal link between their protected characteristic and the detriment suffered. This will depend on a detailed factual assessment and, in many cases, the strength of evidence to be cross-examined. It also serves as a reminder to review and assess ill-health early retirement schemes where they exist; this is a sensitive area and employers should ensure their terms are followed in a fair and consistent manner.