M Nowak v Evtec Aluminium Ltd

An employment tribunal must assess allegations of direct discrimination by reference to the evidence and the way the case is advanced as a whole. It may treat the absence of an alleged trigger, supporting evidence or a wider evidential pattern as relevant, but must not use those features as abstract rules excluding discrimination.

In an employment discrimination claim, Equality Act 2010 section 39(2)(d) requires a detriment. The worker’s genuine view is relevant, but the treatment must also be capable of being regarded as detrimental by a reasonable worker. A tribunal need not apply the burden-of-proof provisions in two stages where it can make positive findings about the actual reasons for the conduct.

The claimant, a Polish machine operator, appealed against an employment tribunal decision dismissing complaints of direct race discrimination and victimisation. The complaints concerned alleged treatment by a manager during 2019, the handling of the claimant’s November 2019 grievance alleging discrimination, and a 2022 letter concerning Friday rest breaks following a collective grievance.

The appeal also contended that the tribunal had failed to determine a distinct complaint under the Working Time Regulations 1998. At a preliminary hearing immediately before the merits hearing, the tribunal had held that no such live complaint had been pleaded and refused permission to amend. The central questions were whether the tribunal’s reasoning on discrimination, detriment, causation and burden of proof disclosed errors of law, and whether a Working Time Regulations claim had been before it.

1. Appeal dismissed. The employment tribunal did not apply an erroneous abstract proposition that a worker cannot suffer race discrimination after a period without discriminatory treatment, or that discrimination against one Polish worker was impossible because other Polish workers were not similarly treated. Read fairly and in context, its observations formed part of a detailed evidential assessment of whether the alleged conduct occurred and, if so, whether race influenced it. The tribunal was entitled to find the claimant’s account unreliable and unsupported.

2. The direct-discrimination cause of action in this employment case arose under Equality Act 2010 section 39(2)(d), which required the claimant to have been subjected to a detriment. The tribunal correctly applied the test explained in Jesudason: the worker’s own experience matters, but a reasonable worker must be capable of viewing the treatment as prejudicial or disadvantageous. It was entitled to find that ensuring the claimant understood the seriousness of a grievance and wished to proceed was not detrimental treatment.

3. The tribunal was not required to find that the burden of proof shifted under section 136. Whether it shifts is fact-sensitive. Further, a tribunal need not proceed in two stages where it has made positive findings about why the impugned acts occurred. Here it had found that shortcomings in the grievance process were not because the claimant was Polish or because he had complained of discrimination.

4. No freestanding claim under the Working Time Regulations 1998 had been live before the tribunal. The pleadings, the agreed and clarified lists of issues, and the withdrawal of the direct-discrimination breaks complaint showed that the only rest-break complaints pleaded were discrimination and victimisation complaints. Facts potentially capable of supporting a Working Time Regulations claim did not mean that such a claim had been advanced. The refusal of permission to amend was not challenged.

5. The tribunal was also entitled to dismiss the victimisation complaint concerning the April 2022 letter. Even assuming the letter could be detrimental, the tribunal had permissibly found that the respondent’s position would have been the same for any employee seeking a 20-minute Friday break. There was therefore no causal link between the protected acts and any detriment.

• Employment Appeal Tribunal: appeal dismissed: [2026] EAT 26.
• Employment Tribunal: all complaints were dismissed following a full merits hearing in November 2023. Written reasons were sent on 26 February 2024.