If an allegation of victimisation is made in “bad faith”, then it cannot constitute a protected act under the Equality Act 2010. In Kalu and Ogueh v University Hospitals Sussex NHS Foundation Trust, the EAT held that although the tribunal had considered an allegation of bad faith that had not been pleaded by the trust, it had still been right to reject the complaints of victimisation made by the two claimants.
Mr Kalu and Professor Ogueh were members of the trust’s Black and Minority Ethnic (BME) network, as was a colleague, Erin Burns. Following a meeting of the network in January 2014, she raised a grievance that the chair, Dr Lyfar-Cissé, had outed her as gay and that this behaviour had been homophobic. Ms Burns then raised a number of other grievances over the next few months about the chair’s subsequent behaviour.
On 12 January 2015, a collective grievance was raised against Ms Burns by eight BME network members, including Mr Kalu and Professor Ogueh. The gist of the complaint was that Ms Burns had insinuated that as the members of the BME network were under the control of Dr Lyfar-Cissé, they were also homophobic, a stereotypical assumption that was discriminatory. Ms Burns then complained that the collective grievance amounted to victimisation.
At this point, the trust instructed an external barrister to examine all the outstanding grievances under its Dignity at Work (DAW) policy. However, the claimants refused to co-operate with the investigation which found that the collective grievance had amounted to an act of victimisation against Ms Burns, contrary to the DAW policy.
Following an MHPS investigation (Maintaining High Professional Standards), the claimants were dismissed for misconduct in 2017. They lodged tribunal claims alleging victimisation relating to the external investigation; and unfair dismissal on the basis that the collective grievance constituted a protected act under the Equality Act 2010, among other things.
The tribunal concluded that as the collective grievance contained allegations that were untrue and which had been made in bad faith, it could not be a protected act under section 27(3) of the Equality Act. This states that “giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith”.
Although it then went on to find that the claimants had been unfairly dismissed because of a procedural failing, it reduced their compensation to zero because of their contributory conduct.
The claimants appealed on the basis that the trust had not argued as part of its pleaded case that the allegations in the collective grievance had been made in bad faith; and that the tribunal was wrong to conclude that the external barrister’s report did not constitute an act of victimisation against them.
Although there was no absolute rule that an allegation which has not been put during a hearing can never be considered, the EAT held that it was unfair for the tribunal to have come to that conclusion in the context of a victimisation complaint as it inferred dishonesty on the part of the claimants.
However, it found that the tribunal was right to reject complaints of victimisation relating to the external barrister’s report which were considered on the assumption that the collective grievance was a protected act, alongside other protected acts found by the tribunal. This was because the conclusions to which the barrister had come were not the result of the (actual or claimed) protected acts or motivated by the protected acts and, therefore, did not constitute victimisation against the claimants.