Bad Faith Allegations – Navigating Victimisation and Whistleblowing Risks

Adrian Fryer

Allegations made in bad faith present a particular legal challenge for employers. While it may be tempting to take firm action against an employee who appears to have fabricated a complaint, doing so can expose the organisation to claims for victimisation, detriment, or automatic unfair dismissal.

The key risk arises where the original complaint engages statutory protection.

Under the Equality Act 2010, employees are protected from victimisation if they carry out a “protected act”, such as alleging discrimination. Crucially, this protection applies even if the allegation is mistaken—provided it is made honestly. It will only fall away where the allegation is made in bad faith.

The distinction between bad faith and improper motive is critical. In Saad v Southampton University Hospitals NHS Trust, a trainee doctor raised a historic allegation of discriminatory comments during performance proceedings. The tribunal initially found his complaint was not protected because it was motivated by a desire to delay assessment. However, the Employment Appeal Tribunal disagreed. The correct question was whether the allegation was made honestly – not why it was made. As the employee genuinely believed the comments had been made, his claim succeeded.

Whistleblowing claims follow a slightly different framework. To qualify for protection under the Employment Rights Act 1996, the employee must have a reasonable belief that they are disclosing wrongdoing, falling within one of the six ‘protected’ areas (including health and safety, sexual harassment, damage to the environment, breach of a legal obligation and any attempt to conceal any of these) and that it is in the public interest. Allegations based on information known to be false, or without any credible basis, are unlikely to meet this threshold.

Even where whistleblowing protection applies, bad faith may still be relevant at the remedy stage. Compensation can be reduced by up to 25% if the disclosure was motivated by malice or personal gain.

Where there is strong evidence of deliberate fabrication, disciplinary action may be justified. In Toure v Ken Wilkins Print Ltd, an employee who made a knowingly false allegation of racial abuse and attempted to leverage it for personal gain was fairly dismissed. The tribunal found the allegation was fictitious and not a protected act.

For HR professionals, the message is clear: proceed with caution. Distinguish carefully between weak, mistaken and dishonest complaints. Only the last category removes statutory protection – and proving it requires robust evidence and a fair process.

Contact our Employment Team.