Frank Aliyu v Tesco Stores Limited

The Employment Appeal Tribunal dismissed the claimant's appeal against the Employment Tribunal's rejection of complaints of victimisation, harassment, protected-disclosure detriment and protected-disclosure dismissal. The EAT held that the Employment Tribunal had directed itself correctly on the legal tests for detriment (Shamoon principles), causation for victimisation and protected-disclosure detriment (whether the protected act/disclosure materially influenced the treatment), and harassment under section 26 Equality Act 2010. The EAT concluded that the Employment Tribunal's factual findings — that certain acts (for example the alleged salute) were not established as asserted, that some investigatory steps were flawed but did not affect outcome, and that dismissal was for misconduct and not because of protected acts or disclosures — did not involve an error of law or perverse findings.

Background and parties: The claimant, a delivery driver employed by the respondent from December 2019, brought multiple claims after a series of workplace incidents in October 2020 and subsequent investigatory and disciplinary processes leading to summary dismissal in August 2021. Key complaints included victimisation, harassment, detriment and dismissal claimed to arise from alleged protected acts and protected disclosures, together with direct race discrimination and holiday pay claims (the latter not central to this appeal).

Procedural history: The Employment Tribunal (Employment Judge Abbott sitting with lay members) heard the substantive claims from 28 November to 2 December 2022 and sent judgment on 16 January 2023. The claimant appealed to the Employment Appeal Tribunal; amended grounds of appeal were formulated at a preliminary Rule 3(10) hearing, and the appeal was heard by HHJ Tayler on 20 November 2024.

Nature of the appeal/relief sought: The appellant sought to overturn the Employment Tribunal's dismissal of his claims of victimisation, harassment, protected-disclosure detriment and protected-disclosure dismissal. Grounds challenged the Tribunal's application of legal tests for detriment, causation, the harassment "related to" requirement, failure to find protected disclosures, and alleged failure to take into account relevant factors.

Issues framed by the court:

• Whether the Employment Tribunal applied the correct legal tests for detriment and causation under section 27 Equality Act 2010 and section 47B ERA 1996;
• Whether the Tribunal correctly applied section 26 Equality Act 2010 when considering harassment and the wider "related to" test;
• Whether the Tribunal erred in law in its factual findings as to the alleged detrimental acts (including the explanation of the alleged salute, investigatory flaws, alleged false counter-allegation, the conclusion that there was a disciplinary case to answer, and dismissal) and in not making a finding whether protected disclosures were made.

Court's reasoning and disposition: The EAT reviewed the Employment Tribunal's legal directions (including reliance on Shamoon and related authorities) and concluded the Tribunal applied the correct legal principles for detriment, causation and harassment. The EAT considered each complained-of act:

• Explanation of the alleged salute: the Tribunal found the People Partner's remarks inappropriate but did not find they caused detriment or an effect violating dignity; the EAT found no error of law or perverse factual conclusion.
• Investigatory flaws: the Tribunal accepted the investigation was not "gold standard" but concluded flaws did not affect outcome and thus no detriment — the EAT found no successful challenge to causation to overturn that conclusion.
• Alleged false counter-allegation: the Tribunal found the allegation was not false on the evidence (messages and emails supported its truth), so the pleaded detriment was not established.
• Conclusion that there was a disciplinary case to answer and dismissal: the Tribunal found these conclusions were reasonably open on the evidence and not materially influenced by any protected act or disclosure; the EAT accepted that the Tribunal’s use of language such as "regardless" or "irrespective" meant there was no material influence and dismissed the appeal.

Other findings: The Tribunal did not determine whether the claimant made protected disclosures but found that even if the disclosure allegations mirrored the protected acts relied on, any detriments and the dismissal were not because of those acts/disclosures. The EAT rejected the claimant's allegations of bias and re‑argument of the merits, emphasising an appeal is on a point of law.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had applied the correct legal tests for detriment (Shamoon test), causation for victimisation and protected-disclosure detriment (whether the protected act/disclosure materially influenced treatment), and harassment under section 26 Equality Act 2010. The EAT found no error of law or perverse factual findings in the Employment Tribunal’s conclusions that the challenged acts did not amount to detriment related to protected acts/disclosures and that dismissal was for misconduct not because of protected acts/disclosures.

Appeal from the Employment Tribunal (Employment Judge Abbott with lay members), hearing 28 November–2 December 2022, judgment sent 16 January 2023. Appeal determined by the Employment Appeal Tribunal, judgment [2024] EAT 185 (28 November 2024).