A v Carers Trust South East Wales
[2023] EAT 80
Frank Aliyu v Tesco Stores Limited
28 November 2024
[2024] EAT 185
Employment Appeal Tribunal
An employee claimed his employer treated him badly because he reported discrimination. A judge ruled against him, saying the bad treatment wasn't because of his report, but because of his own behaviour. A higher court agreed with the judge.
Key Facts
- •Frank Aliyu, a Tesco delivery driver, made a complaint about colleagues via Tesco's 'Protector Line' alleging sexual harassment and discrimination.
- •Aliyu later alleged a colleague made a 'Heil Hitler' salute; the Tribunal rejected this.
- •A manager, Mr. Popely, made inappropriate comments about the salute during a meeting with Aliyu.
- •Aliyu was suspended after a colleague reported Aliyu making a comment about another colleague.
- •Aliyu's grievance and disciplinary processes were lengthy and involved multiple managers.
- •Aliyu was ultimately dismissed for misconduct, including threatening messages sent to a manager.
- •Aliyu appealed his dismissal; the appeal was unsuccessful.
Legal Principles
Victimisation requires a detriment 'because' of a protected act; the protected act must be a significant influence or effective cause.
Equality Act 2010, section 27; Nagarajan v London Regional Transport [1999] IRLR 572, HL
Detriment is interpreted widely; a reasonable worker would or might view the treatment as detrimental.
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; Warburton v Chief Constable of Northamptonshire Police [2022] EAT 42
Protected disclosure detriment requires the detriment to be 'on the ground' that a protected disclosure was made; it must materially influence the employer's treatment.
Employment Rights Act 1996, section 47B; Fecitt v NHS Manchester [2012] ICR 372, CA
Harassment requires unwanted conduct related to a protected characteristic with the purpose or effect of violating dignity or creating a hostile environment. 'Related to' is broader than 'because of'.
Equality Act 2010, section 26; Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495
Outcomes
Appeal dismissed.
The Employment Tribunal's findings were not legally flawed. While some reasoning was infelicitous, the Tribunal correctly applied the legal tests for victimisation, protected disclosure detriment, and harassment. The claimant's dismissal was found to be due to his misconduct, not his protected acts or disclosures.