Frank Aliyu v Tesco Stores Limited

For victimisation and protected-disclosure detriment, the question is whether a reasonable worker would or might regard the treatment as disadvantageous. Physical, economic, or outcome-changing consequences are unnecessary. A reasonable sense of grievance may suffice.

The protected act or disclosure must nevertheless have had a material causal influence on the treatment. A tribunal’s infelicitous language does not establish an error of law where, read fairly and as a whole, its findings show that it applied that test. Conduct may be related to race more broadly than conduct done because of race, but harassment also requires the statutory purpose or effect. The appeal was dismissed because the unchallenged causation findings and findings on purpose or effect were dispositive.

The claimant, a delivery driver, made allegations concerning colleagues through the respondent’s Protector Line. After a later allegation that he had made a racial comment, he was suspended, investigated and ultimately summarily dismissed for misconduct, including messages sent to an investigating manager.

The Employment Tribunal rejected claims including victimisation, harassment, protected-disclosure detriment, and dismissal for making protected disclosures. It found that the relevant decisions were not caused by protected acts or disclosures and that misconduct was the actual reason for dismissal.

The claimant appealed, challenging the Tribunal’s approach to detriment, causation and harassment, its failure to decide whether disclosures were protected, and its treatment of two asserted contextual factors.

1. Appeal dismissed. Although aspects of the Employment Tribunal’s reasoning were infelicitous, no error affected its dispositive findings.
2. The Tribunal correctly directed itself on detriment. The proper question is whether a reasonable worker would or might regard the treatment, in all the circumstances, as disadvantageous. The absence of a tangible consequence does not preclude detriment. Thus, the Tribunal’s suggestion that flaws in an investigation caused no detriment because they did not affect its outcome was open to criticism. That issue was nevertheless immaterial because the Tribunal’s unchallenged finding was that the flaws were not caused by protected acts.
3. The causation tests under section 27 of the Equality Act 2010 and section 47B of the Employment Rights Act 1996 were essentially the same on these facts. Read as a whole, the Tribunal found that protected acts and disclosures had no significant or material influence on the impugned treatment. Its expressions “regardless of” and “irrespective of” the protected acts bore that meaning.
4. A pleaded detriment consisting of a false counter-allegation failed where the allegation was found true. The Tribunal was not then required to decide causation. A true allegation may in another case amount to detriment, including where made for an ulterior motive, but that was not the pleaded case.
5. The Tribunal insufficiently explained why conduct was not related to race, a broader concept than conduct done because of race. However, its findings also established that the inappropriate explanation of the alleged salute neither had the purpose nor the effect required by section 26 of the Equality Act 2010. That conclusion was not perverse.
6. It was unnecessary to determine whether the alleged disclosures were protected. The detriment claims failed in any event on causation, and the Tribunal had found that misconduct, not any disclosure, was the actual reason for dismissal.

• Employment Appeal Tribunal: appeal dismissed: [2024] EAT 185.
• Employment Tribunal: Employment Judge Abbott sitting with lay members dismissed the relevant claims after a hearing from 28 November to 2 December 2022. The judgment was sent to the parties on 16 January 2023.