M Kokomane v Boots Management Services Ltd

An allegation can be a protected act under section 27 of the Equality Act 2010 without using the words “race”, “discrimination” or referring expressly to the Act. The allegation must nevertheless concern facts which, if proved, could amount to a contravention of the Act.

Whether that threshold is met requires a contextual assessment. The Employment Tribunal must consider all information given to the employer and how the employer would have understood it, including relevant workplace facts already known to it. A complaint expressed obliquely cannot be rejected solely because it lacks express legal labels.

The claimant appealed against an Employment Tribunal decision that her written grievances and grievance meeting did not amount to protected acts for the purposes of a victimisation claim.

She had complained of being treated differently from other staff. She was the only black full-time employee at the store and relied on an incident in which she was accused of shouting, together with grievance-meeting notes referring to a stereotype about black women being loud. The Tribunal held that she had not alleged race discrimination because she had not expressly mentioned race or discrimination.

The central issue was whether the Tribunal had applied an unduly narrow approach to identifying a protected act under section 27 of the Equality Act 2010.

1. Appeal allowed and remitted. The Employment Tribunal had erred in law by treating the absence of an express reference to race or discrimination as determinative, or apparently close to determinative, of whether the claimant had made a protected act.

2. Under section 27 of the Equality Act 2010, the allegation need not expressly state that discrimination occurred. It must, however, concern facts which, if proved, could amount to a contravention of the Act. In this case that meant an allegation of race discrimination or race harassment.

3. The question must be answered in context. The Tribunal must consider all information supplied by the employee and ask how the employer would have understood the complaint. That includes workplace facts known to the employer. An explicit complaint will usually be straightforward. Where a complaint is oblique, context assumes greater importance.

4. The Tribunal had found facts capable of forming a material context: the claimant was the only black employee; she complained of different treatment; she had been accused of shouting; and the grievance-meeting notes raised a possible connection between shouting and a negative stereotype of black women. The Tribunal did not clearly analyse those facts when deciding what the respondent understood the grievances and meeting complaint to mean.

5. The apparent tension between the Tribunal’s treatment of the shouting allegation in different parts of its reasons did not establish perversity. It did, however, reinforce the conclusion that the contextual evidence had not been properly addressed. The EAT could not safely resolve the protected-act issue on the recorded findings.

6. Applying Sinclair Roche and Temperley, the matter was remitted to the same Tribunal. The error concerned its legal approach, rather than any lack of professionalism or bias. If that proved impracticable, the regional employment judge could appoint a different panel so that the matter could proceed promptly.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2025] EAT 38 and remitted the protected-act issue to the Employment Tribunal.
• Employment Tribunal: Held that the claimant’s grievances and grievance meeting were not protected acts. Citation not stated in the judgment.