Kwabla Gad v UK Power Networks (Operations) Ltd

In a victimisation claim, an employment tribunal must assess all relevant evidence when deciding whether a protected act was a substantial and effective cause of the alleged detriment. It may consider evidence capable of supporting an inference of victimisation alongside evidence pointing away from it, including its findings on the actual reasons for the treatment.

An earlier email referring to the effects of previous proceedings may be relevant evidential material. It need not, however, compel an inference that later treatment was because of the protected act. A tribunal is entitled to read the document as a whole and in its context. It need not determine whether the email was itself detrimental treatment where that was not a pleaded detriment.

The claimant had previously brought and settled an Employment Tribunal claim which included race discrimination. He later brought a second claim alleging direct and indirect race discrimination and victimisation. The alleged victimisation detriments were placement on a poor-performance plan, the failure to offer a full-shift role, and the failure to offer higher-level training.

The Employment Tribunal dismissed the claims. In deciding victimisation, it considered a 2018 management email which referred to a scar left by the earlier proceedings, but found that the protected act played no part in the three alleged detriments. The claimant appealed only the dismissal of victimisation, contending that the tribunal had failed properly to address the email and its evidential significance.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the victimisation complaint.

2. The tribunal correctly directed itself that victimisation may be consciously or unconsciously motivated and that a protected act need not be the sole or main reason for treatment. It must nevertheless be a real, substantial and effective cause of the detriment. Its reference to the protected act as “the reason why” did not disclose a misdirection when read with its full self-direction.

3. The 2018 email was not pleaded either as a protected act or as one of the detriments. The tribunal was therefore entitled to address it as evidence from which an inference might, or might not, be drawn about the reasons for the pleaded detriments. It considered the email carefully, including its reference to the effect of the earlier proceedings, and was entitled to read it as a whole rather than isolate particular words.

4. The tribunal could take account of evidence which pointed away from victimisation. That included the manager’s encouragement of the claimant to seek a role despite colleagues’ concerns, and the tribunal’s findings that the sole reasons for the pleaded treatment were the claimant’s error rate, his lack of willingness to work full shifts, and his unsuitability at that time for higher-level training.

5. The tribunal permissibly considered the direct race-discrimination findings when determining victimisation. It had assessed whether the apparently fair-minded decisions were affected by the protected act and did not adopt a mechanistic approach to the burden of proof. It was not required to decide whether the email itself amounted to a detriment, because no such complaint was before it.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 84.
• Employment Tribunal: Employment Judge King sitting with members dismissed the claimant’s discrimination and victimisation claims. The judgment was sent to the parties on 23 December 2022.