Frank Aliyu v Tesco Stores Limited
[2024] EAT 185
A Achi v GMB & Anor
9 March 2023
[2023] EAT 29
Employment Appeal Tribunal
A union worker claimed he was unfairly treated and fired after complaining about discrimination. The judge decided his bosses' actions were justified, and he'd already planned to quit before the incident he claimed was the final straw.
Key Facts
- •The claimant, a Black African trade union official, was employed by GMB and resigned in March 2018.
- •He had difficulties at work, including complaints from a branch, a written warning for lateness, and refusal of leave.
- •He went on sick leave in March 2017 and raised a grievance alleging bullying and race discrimination.
- •While on sick leave, publicity materials suggested his involvement in external training events, leading to an investigation.
- •The investigation concluded he didn't participate, but the grievance was dismissed as baseless and potentially malicious, leading to a disciplinary process.
- •The union erroneously terminated his sick pay early, which the claimant claimed was the 'last straw' leading to his resignation.
- •The employment tribunal dismissed claims of direct race discrimination, victimisation, and breach of trust and confidence, but upheld a wages claim for unpaid sick pay.
Legal Principles
Victimisation requires that the protected act be a material contributing factor to the detrimental treatment.
Kong v Gulf International Bank (UK) Limited [2022] EWCA Civ 491
In constructive dismissal, the employer's conduct must amount to a fundamental breach of contract.
LB of Waltham Forest v Omilaju [2005] IRLR 35 CA, Nottinghamshire CC v Meikle [2002] IRLR 703 CA and Mruke v Khan [2018] IRLR 526 CA
The tribunal must consider the subjective mind and motivation of the decision-maker in victimisation claims.
Kong v Gulf International Bank (UK) Limited [2022] EWCA Civ 491
A tribunal cannot be criticised for not addressing arguments not raised by the claimant before the tribunal.
Outcomes
Appeal dismissed.
The tribunal's findings of fact were not perverse and its application of the law was correct. The claimant's arguments on appeal largely attempted to re-run the case with new arguments not presented to the tribunal.
Victimisation claims dismissed.
The tribunal found that the actions taken by the respondents were not because of the claimant's protected act (raising a grievance), but due to concerns about apparent evidence of working while on sick leave and the potential for malicious complaints, as per union policy.
Constructive dismissal claim dismissed.
The tribunal found that the claimant had already decided to resign before the alleged 'last straw' (premature termination of sick pay) and that the sick pay termination was due to a genuine misunderstanding.