Nagra v Unipart: EAT rules tribunal need not repeat contract worker point to litigant in person

The Employment Appeal Tribunal has held that a tribunal which has already explained a potential statutory route to a litigant in person is not required to raise it again, or to determine it on his behalf, where he chooses to advance a different case.

In Nagra v Unipart Group Ltd [2026] EAT 157, Marcus Pilgerstorfer KC, sitting as a deputy High Court judge, dismissed an appeal against the rejection of the claimant's discrimination and equal pay claims. Mr Nagra had worked for Unipart through a recruitment agency. He told the tribunal that another company employed him directly and that Unipart was liable as its agent.

At an earlier case management hearing, an employment judge explained that the contract worker provisions in section 41 of the Equality Act 2010 apply where a person employed by one entity is supplied to another which makes work available. Mr Nagra did not adopt that alternative. At the later preliminary hearing, the tribunal found a genuine agency relationship, held that he was an agency worker on assignment to Unipart, and concluded that he had not proved employment by the other company. He had chosen not to give evidence.

The central ground was that the tribunal should itself have raised and determined section 41 liability. The deputy judge accepted that the point "shouted out" from the pleadings, as Unipart's counsel conceded, since both respondents said Mr Nagra was an agency worker supplied under a contract. But the obligation to raise it for clarification was discharged at case management. Under Drysdale v Department of Transport, a tribunal has a wide margin of appreciation, and the preliminary hearing had to be assessed in light of the earlier explanation. Requiring the same point to be repeated at every hearing would not serve the overriding objective.

Nor did the fundamental duty of fairness make it necessary, in the sense of essential, to formulate the alternative case, the second category identified in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust. Mr Nagra had been told of the route, had indicated that he understood the relevant concepts, declined it and persisted with a different case. Further intervention would risk the judge entering the arena, and a litigant's autonomy over forensic decisions, including their costs consequences, had to be respected.

Eltek v Thomson, where a tribunal itself introduced a contract worker claim, did not assist. It showed that doing so could be permissible, not that it was required, and the EAT there said its decision should not be treated as a precedent. The claimant in that case had also not been alerted to the route or declined it.

The judge further rejected any argument that the point arose "as a matter of course", applying Whitaker v White Rose Academies Trust and Cherrington v University of Derby. A tribunal is not routinely required to consider separate statutory provisions on which a party has not relied, and the EAT will be very circumspect about extending the established categories. A section 41 claim would have been a new cause of action.

The remaining grounds failed. The tribunal's statement that Mr Nagra had not shown he was employed by the agency or Unipart might be difficult to reconcile with its finding that he contracted with the agency as a worker. Any error was immaterial, however. The other company was not a principal because it made no work available and was not party to a relevant contract, and no unpleaded claim against Unipart had to be determined. The reasons were adequate for the case actually advanced.

The challenge to the finding of no material change after Mr Nagra moved into an analyst role was neither perverse nor inadequately reasoned. A change in duties, title or pay did not without more alter agency arrangements that continued, including payment through the agency. The tribunal had considered a transcript of a pay discussion with managers and found it open to interpretation, with no context supplied because the claimant gave no evidence. It was also not required to consider a direct employment case that had never been advanced.