In a high-profile case, Mr. Nowak and his colleagues, who were Polish machine operators, were hired onto “new-starter” contracts that paid less than the legacy contracts enjoyed by longer-serving staff. They sued Evtec Aluminium Ltd., the current owner of the foundry, alleging racial discrimination as almost everyone on the inferior contracts was Polish and claiming victimisation after Mr. Nowak twice complained. The original Employment Tribunal (ET) decided that the contractual disparity stemmed from the start date, not nationality, and therefore rejected the direct discrimination claim, but found that his resignation did not amount to constructive unfair dismissal. An Employment Appeal Tribunal (EAT) has dismissed the appeal, affirming that a flawed or perfunctory internal investigation does not, without more, create a legal presumption of racial discrimination.
Facts:
The claimant, a Polish national, worked as a machine operator for an aluminium castings company from 2016 until his resignation in 2022. During this period, the company underwent multiple ownership changes via the Transfer of Undertakings (Protection of Employment) (TUPE 2014) Regulations. An ongoing tension in the workplace related to the two different tiers of contracts that were in effect, older contracts, which were held mostly by British workers, offered better pay and benefits, while more recent contracts, largely held primarily by a large majority of Polish recruits, offered less favourable terms.
In 2019, the claimant raised concerns about his manager, a Mr. Mather, alleging unfair treatment and threats of dismissal. Specifically, he claimed that Mr. Mather blamed him for errors regardless of fault and threatened to fire him “with the click of a finger”. The claimant eventually filed a formal grievance in November 2019, which the respondent admitted was a protected act under Section 27 of the Equality Act 2010. In response to this grievance, the company moved the claimant to a different production line, citing a need to separate the parties during the investigation. However, the internal investigation was found to be a rather perfunctory inquiry, as there were no corroborating witnesses to the alleged verbal abuse.
The dispute escalated in December 2021 when 23 employees, including the claimant and several British colleagues, filed a collective grievance regarding Friday rest breaks. Under a longstanding arrangement facilitated by a trade union, the workforce had historically opted for a shorter 10-minute break on Fridays to facilitate an earlier finish time. The claimants argued that for a six-hour shift, they were legally entitled to a 20-minute break. The company responded by stating that, while employees could take a 20-minute break, they would be required to finish their shift 20 minutes later than those who did not.
The appeal in respect of the collective grievance outcome was, however, unsuccessful. The claimant brought claims of direct race discrimination and victimisation to the ET, which was dismissed, leading to an appeal to the EAT.
Decision:
The EAT dismissed the appeal, ruling that the ET’s original conclusions were legally sound and supported by the facts.
The EAT rejected the argument that the ET had used “faulty abstract reasoning”. The claimant argued that the ET was wrong to assume that, because the manager had not mistreated him previously, he could not have suddenly become discriminatory in 2019. Further, as the workforce was largely Polish, the EAT agreed that the failure to show that other Polish workers were also targeted weakened his claim that he was being singled out specifically because of his nationality.
Regarding the claim that the employer pressured the claimant to drop his grievance, the EAT upheld the “objective-subjective” test for detriment. The EAT reasoned that while the claimant might have felt pressured, a “reasonable employee” would not consider a manager’s attempt to ensure a worker understands the seriousness of a formal grievance as a legal detriment.
The EAT found that the tribunal did not err by failing to address the Working Time Regulations (WTRs) 1998 as a standalone claim. The Judge reasoned that, while the facts might have supported a WTR claim, the claimant’s legal team had explicitly framed the case as one of racial discrimination and victimisation during preliminary hearings. Thus, a tribunal is only required to adjudicate the claims actually “pleaded” and brought before it.
Implications:
This judgement reinforces several critical boundaries in UK Employment Law, particularly regarding how Tribunals distinguish between “bad management” and “unlawful discrimination”. The EAT upheld the finding that, even though the internal investigation was “not worthy of the name” and the manager was “inadequate,” these failures were insufficient to shift the burden of proof to the employer. For employees, this means that proving an employer was incompetent or “unfair” is insufficient, as there must be evidence—or at least a basis for an inference—that the incompetence was specifically motivated by a protected characteristic (such as race) rather than general laziness, lack of training, or a weak company culture.
The case clarifies the objective-subjective test for what constitutes a “detriment” in victimisation claims. For victimisation to occur, the individual concerned must have genuinely felt they were being punished and that any reasonable worker in the same circumstances would have also felt disadvantaged. By ruling that any manager who “ensured that the claimant was aware of the seriousness of the grievance” did not constitute a detriment, the EAT is effectively shielding employers. It suggests that, as long as a manager’s actions can be framed as “process-checking” rather than undue “pressure,” it may not cross the legal threshold for victimisation, even if the employee finds the interaction intimidating.
This case serves as a warning for legal representatives about procedural accuracy. Even though the claimant’s facts clearly pointed toward a potential breach of the WTRs regarding Friday breaks, the claim was ultimately lost because it was not officially “pleaded” as a WTR claim.
