In Toure v Ken Wilkins Print [2024] IRLR 282 The Employment Appeal Tribunal considered an appeal by the claimant who had raised a grievance against his employer alleging that he had been racially abused. The grievance was not upheld, the employer concluding that the alleged incidents had not taken place.

The employee appealed, but in two conversations with senior officers of the employer said that he would withdraw the appeal and not bring Tribunal proceedings if he was promoted. The employer rebuffed that suggestion.  The employee was later dismissed for conduct related matters including the conversations which the employer regarded as tantamount to blackmail.

Before the Employment Tribunal he claimed that he was a victim of direct racial discrimination and victimisation by dismissing him. His claims were dismissed, the Tribunal finding that his evidence could not be believed. The employee appealed.  

Dismissing his appeal, the EAT (Judge Shanks sitting with two lay members) decided that a victimisation claim cannot be founded on an allegation which was made in bad faith. Section 27(3) of the Equality Act 2010 applied so the allegation was not a protected act. The EAT said:

“The allegation that he was racially abused was plainly false and, furthermore, can only have been made in bad faith.  We cannot see how it could possibly be the case that the allegation was fictitious as the tribunal expressly find but not false and not made in bad faith. The allegation could not therefore possibly be the basis of a successful victimisation claim”.

Similarly, the employee’s offer not to pursue his grievance appeal was not a protected act. Rather it was a threat made in bad faith. The EAT said:

“On the tribunal’s findings the initial allegation which led to the grievance was plainly false and made in bad faith. What then happened was that there was an implied threat made to [the employer] which was, indeed, tantamount to blackmail. This threat, in our firm view, was clearly ‘separable’, as the case law refers to it, and the cause of the dismissal was not a protected act: it was, rather that a threat was made which was entirely inappropriate”.

The case is unusual in that the allegations were made in bad faith from the outset.  The EAT has firmly shut the door on any possibility of arguing that later acts arising from an allegation that was made in bad faith can nonetheless amount to protected acts or victimisation. It also confirms the importance of establishing a causal link between an alleged protected act and subsequent detriment such as dismissal.

Download this page
Back to Top