In Komeng v National Highways Ltd [2026] EAT 75, the Employment Appeal Tribunal considered whether a fixed-term employee had been treated less favourably when he was not informed about or nominated for an HR Business Partner development programme that was offered to permanent colleagues. The tribunal had found that the claimant’s fixed-term status was one factor in the decision, but also accepted that the employer had genuine reasons for not putting him forward, including his expressed career interests and the fact that his contract was due to end shortly after the course.
The EAT held that the tribunal had made a legal error by suggesting that a fixed-term employee must show a separate detriment in addition to less favourable treatment when denied a training opportunity. It confirmed that exclusion from a training opportunity can itself amount to less favourable treatment under the Fixed-term Employees Regulations. However, the EAT concluded that the error did not affect the outcome because the tribunal had been entitled to find that the employer’s actions were objectively justified.
The EAT also upheld the tribunal’s decisions that the claim had been brought out of time and that the claimant’s constructive unfair dismissal claim should fail. As a result, although the claimant succeeded on a point of legal interpretation, the appeal was ultimately 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.