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Could a tribunal's decision that a Claimant had not been victimised stand where it had erred in concluding that the alleged act of victimisation had not occurred?

Yes, held the EAT in 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 said 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. 

The EAT acknowledged that the tribunal had been wrong not to find that the Claimant’s dismissal could, in principle, be an act of victimisation. However, they 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.