In the recent matter of Saad v Southampton University Hospitals NHS Trust (available here) the claimant, Mr Saad, was a trainee surgeon. There were issues surrounding his performance, but he countered them by raising a grievance. He alleged that he had been described by his programme director as looking like a terrorist, and claimed racial and religious discrimination and abuse. His employer rejected this, removed him from the training programme and dismissed him. Mr Saad took the matter to a tribunal.
At the tribunal he claimed that he had been victimised and unfairly dismissed for having been a whistleblower. The tribunal disagreed with his argument that, where the terrorist comment was concerned, he had made a protected disclosure and a protected act, finding that he had not made either in good faith. The tribunal felt that the grievance had been merely a delaying tactic to avoid a review of his poor performance. Mr Saad took the matter to the Employment Appeal Tribunal (EAT).
There he argued that there is a different definition of ‘good faith’ in making a protected disclosure under whistleblowing legislation from that in claiming racial discrimination. The question came down to whether the evidence given, as a protected act, in his claim for racial victimisation had been given honestly. Mr Saad’s potentially having had an ulterior motive for giving it was relevant, but that was not the point of the enquiry.
The EAT upheld Mr Saad’s claim, ruling that he had genuinely believed that the terrorist comment had been made and had, therefore, acted honestly in making his allegation against the programme director. He may well have had an ulterior motive but, nevertheless, in the opinion of the EAT, he had acted in good faith.
Inevitably this ruling may prove difficult for employers in the future. Unless an employer can prove outright that a disclosure made as a protected act is a deliberate lie and, therefore, in bad faith, it will be difficult to do much about ulterior motives. As the law stands at the moment the reasons why someone is saying something are of considerably lesser importance than whether they believe that what they are saying is true. It is what, not why.
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