It is victimisation for an employer to subject an employee who has brought proceedings under the Equality Act to a “detriment” unless they did so in “bad faith”. In Toure v Ken Wilkins Print Ltd the EAT held that as the tribunal found that the claimant had made a number of false allegations his claim of victimisation could not succeed.
Basic facts
Mr Toure, who is black African, started working for Ken Wilkins Print in April 2018. In January 2019 he raised a grievance complaining that he had been called racist names. The allegations were investigated by the production director Mr O’Dowd who interviewed a number of witnesses. He rejected the grievance in June 2019, concluding that Mr Toure had not, in fact, been racially abused.
After he was transferred to a different part of the factory to relieve tensions between him and other members of staff, Mr Toure initially indicated that this had resolved his grievance. However, he told the senior manager, Mr Wilkins, in July 2019 that he had further evidence and wanted to appeal. He then allegedly told Mr Wilkins and Mr O’Dowd separately that he would not pursue the appeal or bring any legal proceedings based on his grievance if he was promoted and given a salary increase. In the event, he did not produce any further evidence and on 1 October 2019 wrote to Mr Wilkins saying that he had decided to drop the matter as a “gesture of goodwill”.
After a number of other incidents, Mr Toure was dismissed on 14 October. He lodged tribunal claims, alleging among other things, that his dismissal was an act of victimisation under section 27 of the Equality Act following his complaint of race discrimination.
Relevant law
Section 27 says that it is victimisation for an employer to subject an employee who has brought proceedings under the Equality Act to a “detriment” unless the proceedings were brought in “bad faith
Tribunal decision
After hearing Mr Toure’s evidence, the tribunal held that not only was it “totally unreliable” but that his allegations of racism were fictitious.
As he had not provided any reliable evidence that he had suffered detriments after doing a protected act (in other words, submitting a grievance alleging race discrimination), the tribunal concluded that the incidents “simply did not happen”. Instead he had been dismissed for all the reasons set out in the company’s letter of termination.
Mr Toure appealed, arguing among other things that the tribunal had put too much store by the hearsay statements that had been taken by Mr O’Dowd and had therefore wrongly concluded that the incidents of racism did not happen. He also argued that it was wrong to find that he had not been victimised by the company as his dismissal constituted an act of victimisation.
EAT decision
Dismissing the appeal, the EAT held that the tribunal had been entitled to conclude that the allegations of racial abuse were fictitious. They were also entitled to rely on their assessment of Mr Toure’s evidence as being unreliable and on the hearsay statements taken by the manager in his investigation.
Although the tribunal’s reason for rejecting the victimisation claim in so far as it related to his dismissal was plainly wrong (he clearly had been dismissed), it was also obvious from its findings of fact that that his claim could not succeed because firstly the original allegation of racial abuse was false and must have been made in bad faith and secondly what was said to the two managers during the appeal process was tantamount to blackmail.