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Race Discrimination and Victimisation
Rad Kohanzad appeared for the Appellant in Mr M Nowak v Evtec Aluminium Ltd [2026] EAT 26, an appeal concerning direct race discrimination, victimisation and the handling of an employment tribunal claim. The appeal challenged the tribunal’s reasoning on alleged discriminatory treatment, the burden of proof under the Equality Act 2010, and whether a separate complaint under the Working Time Regulations 1998 had been raised. The Employment Appeal Tribunal (EAT) dismissed the appeal, finding no material error in the tribunal’s reasoning on the grounds before it.
Background to the appeal
Mr Nowak, a Polish national, worked as a machine operator for Evtec Aluminium Ltd and its predecessors. He and four colleagues brought employment tribunal claims involving allegations of direct race discrimination and victimisation. Their complaints arose from matters including alleged treatment by a manager, the handling of grievances and differences in employment terms. The tribunal dismissed the complaints, with written reasons sent to the parties on 26 February 2024.
Mr Nowak appealed against parts of that decision. The EAT considered challenges to the tribunal’s reasoning on alleged race discrimination, its treatment of the burden of proof in victimisation complaints, and the issues surrounding Friday rest breaks. Rad Kohanzad settled the original grounds of appeal and represented Mr Nowak at the EAT, including at a Rule 3(10) hearing and the full appeal hearing.
Did the tribunal reason incorrectly about direct race discrimination?
One ground argued that the tribunal had approached the allegations of direct race discrimination through flawed reasoning. In particular, it was said to have relied on the fact that Mr Nowak had not previously been mistreated and that other Polish employees were not alleged to have received similar treatment.
Rad submitted that discriminatory treatment can begin after a particular event, or affect one individual without affecting every colleague of the same nationality. For example, a manager might react adversely to a particular employee’s conduct or assertiveness in a way influenced by that employee’s race, even if the employee had not previously been treated that way.
The EAT accepted that the challenged passages required examination, but rejected the ground after reading them in the context of the tribunal’s decision as a whole. The tribunal had considered whether the alleged treatment had occurred at all, the changes in how Mr Nowak’s case was presented, the credibility of the evidence, and whether there was evidence connecting any treatment to his Polish nationality.
The EAT concluded that the tribunal was not applying an abstract rule that discriminatory treatment could not begin after years without such treatment, or that an individual could not be singled out. It was assessing the evidence in this particular case. The fact that particular evidence was absent could legitimately form part of that assessment; the tribunal had not made the alleged errors of reasoning.
Victimisation, detriment and the burden of proof
The appeal also challenged the tribunal’s treatment of allegations concerning the employer’s handling of a grievance about alleged discriminatory behaviour. These included an allegation that Mr Nowak had been pressured to drop his grievance, that the investigation was inadequate, and that the employer had failed to progress the grievance appeal.
Two aspects of the law were relevant.
First, a victimisation claim under section 27 of the Equality Act 2010 requires a protected act and detrimental treatment because of that act. Direct discrimination claims also require the relevant treatment to fall within the statutory cause of action—in this employment context, section 39 of the Act. The concept of detriment is broad: treatment may be detrimental if a reasonable worker might regard it as a disadvantage, taking account of the worker’s perspective. But whether the test is met depends on the facts.
The tribunal had found that the manager’s discussion with Mr Nowak about whether he wished to continue with his grievance did not amount to a detriment. The EAT held that the tribunal had applied the correct test and was entitled to reach that conclusion. Rad argued that the finding was perverse, but the EAT considered that the high threshold for such a challenge had not been met.
Second, section 136 of the Equality Act 2010 governs the burden of proof. Whether the facts are sufficient to shift the burden to the respondent is a fact-sensitive question. The EAT explained that a tribunal does not necessarily have to proceed through a separate two-stage analysis if it can make positive findings about why the conduct occurred.
Although the tribunal had criticised aspects of the grievance investigation, it had also made positive findings about the reasons for the conduct. It concluded that the treatment was not because Mr Nowak was Polish or because he had alleged discrimination. The EAT rejected the argument that the burden of proof should have shifted and remained undischarged.
An important distinction follows: an inadequate or unreasonable grievance process does not, without more, establish that the treatment was discriminatory or that a protected act caused it. The tribunal must assess the evidence and the statutory test in the particular case.
Could a Working Time Regulations complaint be treated as part of the claim?
The final issue concerned Friday rest breaks. The claimants had raised concerns about their break arrangements, including a reference to the Working Time Regulations 1998 (WTR). Mr Nowak argued that the tribunal should have treated the claim as including a separate WTR complaint, rather than requiring an amendment to add one.
The EAT rejected that argument. Applying the approach in Moustache v Chelsea & Westminster NHS Trust [2025] EWCA Civ 185, it examined the original claim, the particulars, the lists of issues and what had occurred at preliminary hearings. Read as a whole, the documents and procedural history identified complaints of discrimination and victimisation, not a separate WTR claim. The fact that the alleged facts might also have supported a WTR complaint did not mean that such a complaint had actually been brought.
The tribunal had also refused permission to amend the claim to add a WTR complaint, and that decision was not challenged by the appeal. The EAT therefore did not decide whether the working arrangements themselves complied with the WTR. It decided that the tribunal had not erred by failing to determine a separate WTR complaint that was not before it.
What the EAT decided
The appeal was dismissed. The EAT did not overturn the tribunal’s dismissal of the relevant discrimination and victimisation complaints.
The decision illustrates three points arising from the issues argued:
Reasoning must be assessed in context. A passage in tribunal reasons should be read as part of the overall assessment, rather than treated as an isolated statement if the wider reasoning may explain it.
Poor treatment is not automatically discrimination or victimisation. An inadequate grievance process does not itself prove that the treatment was because of race or a protected act.
The pleaded issues matter. Facts that could potentially support another legal claim do not necessarily mean that claim has been brought. The claim form, subsequent particulars, lists of issues and procedural history all matter when identifying what the tribunal must decide.
These are applications of existing legal principles to the facts of this appeal, rather than a new general test for discrimination or victimisation.
Considering an appeal against an Employment Tribunal decision?
An appeal to the EAT is not a rehearing simply because a party disagrees with the tribunal’s findings. The grounds must identify an arguable error of law, and the tribunal’s reasons must be considered in their proper context. As Nowak v Evtec Aluminium Ltd illustrates, challenges to the evaluation of evidence, the burden of proof and the identification of the claims before the tribunal depend on the particular reasoning and procedural history.
I offer specialist advice on the merits of Employment Tribunal appeals. I can review the tribunal’s judgment and reasons and advise whether there may be arguable grounds to pursue, before you decide whether to incur the further costs of an appeal. If you decide to proceed, I can also advise on and represent you in the EAT.
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Case details
Case: Mr M Nowak v Evtec Aluminium Ltd
Neutral citation: [2026] EAT 26
Case number: EA-2024-000417-NK
Judgment date: 6 February 2026
Judge: His Honour Judge Auerbach
EAT hearing date: 2 December 2025
Appellant: Mr M Nowak
Respondent: Evtec Aluminium Ltd
Counsel for the Appellant: Rad Kohanzad (Direct Access counsel)
Counsel for the Respondent: Caspar Glyn KC (Direct Access counsel)
Outcome: Appeal dismissed.
Official judgment: Read the full EAT judgment (PDF)
