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In the recent case of Toure v Ken Wilkins Print, the Claimant was employed as a forklift truck driver. He raised a grievance alleging that he had been subjected to a racial slur by a colleague. His grievance was not upheld. He appealed against this finding but offered to drop his appeal if he was promoted and given a salary increase. He later dropped his appeal (having not received the promotion or salary increase) at which point the Respondent dismissed him for, amongst other things, his attempted blackmail. 

The Claimant claimed that he had done a protected act by raising allegations of racial harassment and that his dismissal was an act of victimisation. The employment tribunal dismissed his claim, finding that the initial allegations were fictitious and that no act which could amount to victimisation had occurred following them. This was an obvious error – the Claimant’s dismissal could, in principle, be an act of victimisation. The Employment Appeal Tribunal acknowledged that the tribunal had been wrong but nevertheless dismissed the Claimant’s appeal. The tribunal had concluded that the Claimant’s allegation of racial harassment was ‘fictitious’. The EAT held that it could be taken from this that the tribunal would also have concluded that it was false and made in bad faith such that it could not form a protected act.

This case is a reminder that an employee cannot claim victimisation if they knew that their original allegation of discrimination was false.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].