In Komeng v National Highways Ltd [2026] EAT 75, the Employment Appeal Tribunal considered whether an employment tribunal had taken the correct approach to a fixed-term employee’s complaint about being excluded from a career-development training opportunity.
The claimant had not been told about an HR Business Partner development course while he was still employed on a fixed-term contract. Permanent colleagues were put forward for the course, and the tribunal accepted that his fixed-term status was one factor in the decision not to nominate him. The key legal issue was whether the tribunal had wrongly required the claimant to show a separate “detriment” in addition to less favourable treatment in relation to training.
The EAT confirmed that, where a fixed-term employee is treated less favourably than a comparable permanent employee in relation to the opportunity to receive training, no separate detriment finding is required. However, the appeal was dismissed because the tribunal had been entitled to find that the employer’s treatment was objectively justified, the complaint was out of time, and the constructive unfair dismissal claim had been properly dismissed.
Key background
The claimant began work on 27 January 2020 on an 18-month fixed-term contract, working 30 hours per week, later becoming HR Manager – Employee Relations after a restructure. He moved to a permanent full-time contract on 5 July 2021 and resigned in March 2022, with employment ending on 11 April 2022.
The original tribunal dismissed all claims. On appeal, the live issues concerned one fixed-term employee complaint relating to the HRBP training programme and the dismissal of the constructive unfair dismissal claim.
The HRBP course was a one-off development opportunity intended for employees interested in progressing into a more senior HRBP role. The claimant’s manager, Fay Judge, did not put him forward.
Tribunal findings on the HRBP course
The tribunal found that the claimant was not informed about the HRBP course and that the proposed comparators were comparable permanent employees.
It also found that the claimant’s fixed-term status was a material reason why he was not put forward. However, it accepted three genuine reasons for the decision:
he had not expressed interest in the HRBP route;
he was on a fixed-term contract due to end shortly after the course;
his manager was concerned about personal difficulties during lockdown.
The tribunal further found that the claimant was instead focused on CIPD Level 7 training, which his manager supported in principle once he became permanent, given the significant cost and time investment involved.
EAT analysis of the fixed-term employees claim
The EAT held that the tribunal made a legal error by treating the training complaint as requiring a separate finding of detriment. The EAT decided that where a fixed-term employee is treated less favourably than a comparable permanent employee in relation to the opportunity to receive training, that can itself fall within regulation 3, subject to whether the treatment was because of fixed-term status and whether it was objectively justified.
Even so, that error did not alter the outcome. The EAT upheld the tribunal’s alternative finding that the treatment was objectively justified. It accepted that the respondent’s aim was not merely to save money, but to direct training resources appropriately, taking account of:
the claimant’s known career focus on CIPD rather than HRBP;
the use of public funds;
the fact that, at the relevant time, he was due to leave shortly after the course unless his role became permanent.
The EAT also upheld the tribunal’s reasoning that the respondent acted proportionately, because the course was directed to employees who both wanted the HRBP pathway and were more likely to remain in post long enough for the employer to benefit from the investment.
Time limit decision
The EAT upheld the tribunal’s decision that the fixed-term employee complaint was out of time and that it was not just and equitable to extend time.
It rejected the argument that the tribunal had wrongly assessed prejudice or had improperly relied on the claim’s merits when considering extension. The EAT read the tribunal’s reasoning as showing that, even if the claim had otherwise had merit, it would still have refused an extension.
Unfair dismissal appeal
The constructive unfair dismissal claim also failed. The tribunal had found no fundamental breach of trust and confidence, including in relation to the HRBP course, because the manager had generally supported the claimant’s development and had acted for genuine reasons.
The EAT also upheld the finding that the claimant did not resign in response to any alleged breach. The tribunal found he resigned because he had obtained a better-paid, more senior role aligned with his career ambitions, and his own words to his manager and in his resignation supported that finding.
Outcome
The claimant succeeded on one point of legal interpretation: the tribunal had been wrong to require a separate finding of detriment for a training-related complaint under the Fixed-term Employees Regulations.
However, that error did not change the result. The EAT upheld the tribunal’s findings on objective justification, time limits and constructive unfair dismissal. The appeal was dismissed.
How would Lex HR have assessed this case before Tribunal?
To test Lex HR's Employment Tribunal Risk Analyser, we recreated a workplace scenario based on the facts reported in Komeng v National Highways Ltd [2026] EAT 75. All references to the Tribunal's findings, compensation award and appeal outcome were removed before the scenario was analysed by Lex HR. The assessment below shows the claims Lex HR identified and the likely Tribunal outcomes based solely on those underlying facts.
Lex HR Employment Tribunal Risk Analysis
| Potential Employment Tribunal claim | Lex HR assessment | Risk score |
|---|---|---|
|
Less favourable treatment as a fixed-term employee Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 |
Moderate employer risk. The claim has a realistic prospect, but the outcome is likely to depend on comparators and objective justification. The employee can point to exclusion from a career-development programme that permanent colleagues were told about and attended, while they were not informed or nominated despite working in the same function. Access to training and career development is expressly within the scope of protection for fixed-term employees. Fixed-term staff must not be treated less favourably than comparable permanent employees unless the treatment is objectively justified. The employer’s explanation — that the programme was aimed at a different career route, the employee had focused on professional qualification training instead, was expected to leave shortly, and training investment was prioritised where the organisation would obtain benefit — is potentially capable of amounting to objective justification if evidenced consistently and applied proportionately. Risk increases because the employee was not even told of the opportunity, which may look like exclusion from access to development opportunities rather than a reasoned non-selection. On balance, a Tribunal is likely to find the claim arguable but not certain. |
6/10 ■■■■■■□□□□ |
| Constructive unfair dismissal |
Likely to fail, though not without some risk if a Tribunal finds that the development exclusion and later handling of concerns materially damaged trust and confidence. Constructive dismissal requires a repudiatory breach, usually of the implied term of mutual trust and confidence, resignation in response to that breach, and no affirmation. Here, the facts are relatively weak for the employee. There is no clear allegation that the employer misled the employee about the programme, changed contractual status unfairly, or blocked a return from sickness absence. The dispute centres on non-inclusion in a development opportunity and dissatisfaction with the employer’s reasons. The employer also has a substantial point that the employee resigned after securing a better external role, which may lead a Tribunal to find that the resignation was motivated principally by career advancement rather than breach. The employee’s later grievance and sickness absence create some trust-and-confidence risk, but a Tribunal is more likely to conclude that the conduct falls short of a repudiatory breach or that causation for resignation is not proved. |
4/10 ■■■■□□□□□□ |
|
Direct race discrimination Equality Act 2010 |
Likely to fail on current facts. The employee may rely on the fact that the colleagues who attended were of a different race and that they were not informed or selected. However, less favourable treatment alone is insufficient. A Tribunal would need evidence that race materially influenced the decision. The manager’s stated reasons — different career interest, fixed-term status, expected end date, and concerns about timing given personal difficulties — are facially non-racial. Tribunals will scrutinise whether managers tested assumptions fairly and kept an open mind. Poor or closed-minded decision-making can support discrimination findings where there is evidence that protected characteristics influenced the process. The employee’s best point is the lack of openness in the process, particularly not being told about the programme. However, without stronger evidence linking that exclusion to race, the Tribunal is more likely to reject the claim. |
3/10 ■■■□□□□□□□ |
|
Direct sex discrimination Equality Act 2010 |
Likely to fail on current facts. As with race, the employee can compare themselves with colleagues of a different sex who were nominated, but the scenario does not identify facts showing that sex was the reason for the treatment. Equality law requires more than suspicion based on comparator difference. A Tribunal would assess the actual reasons for nomination and whether the manager’s criteria were applied consistently and rationally. The employer’s explanation is at least prima facie non-discriminatory, centred on relevance of the programme, permanence and retention, and the employee’s own expressed focus on a different qualification. There is some litigation risk because subjective development decisions and manager nomination processes can create discrimination exposure if they are opaque or inconsistent. Even so, on these facts, the most likely judgment is dismissal of the claim for lack of evidence that sex was the operative reason. |
2/10 ■■□□□□□□□□ |
How did Lex HR compare?
Using only a reconstructed workplace scenario based on the facts reported in Komeng v National Highways Ltd [2026] EAT 75, Lex HR identified the key legal risks that ultimately featured in the dispute, including less favourable treatment as a fixed-term employee, constructive unfair dismissal, direct race discrimination and direct sex discrimination. Notably, Lex HR correctly identified the fixed-term employee training issue as the highest-risk claim, while also recognising that the employer’s objective justification defence could significantly reduce the likelihood of success. It also assessed the race, sex discrimination and constructive dismissal claims as lower risk on the facts available. This demonstrates how Employment Tribunal risk analysis can help identify the strongest and weakest claims from a workplace scenario, while still reflecting the evidential uncertainty that exists before a Tribunal has made findings.