Leicester City Council v B Parmar

Where connected allegations of direct discrimination concern the conduct of one decision-maker, an Employment Tribunal may assess the evidence cumulatively when deciding whether the burden of proof shifts under Equality Act 2010, section 136. It need not repeat the two-stage analysis separately for every allegation.

A difference in race and treatment is insufficient in itself. However, materially similar treatment of employees of different ethnicity, the absence of a credible non-discriminatory explanation, and relevant disclosure failures may together support an inference of discrimination. Comparators may be evidential rather than statutory comparators; their value depends on the similarities and differences in context.

An appellate tribunal must read Employment Tribunal reasons fairly and as a whole. It must not re-try factual findings or overturn them merely because it would have reached another view.

The claimant, a Head of Service of Indian origin, was temporarily transferred from her post and subjected to a disciplinary investigation. The investigation was later discontinued with no case to answer.

She brought claims of race discrimination. The Employment Tribunal held that the burden of proof shifted because the claimant had been treated more harshly than white employees in comparable situations, and because the respondent had failed to prove a non-discriminatory explanation. It upheld claims concerning the transfer, investigation, investigatory meetings and failure to consider a less formal response.

The respondent appealed on 11 grounds. It principally challenged the Tribunal’s application of the burden of proof, its comparator analysis, its disclosure inference, its factual findings and the adequacy of its reasons.

1. Appeal dismissed. The Employment Tribunal made no error of law in concluding that the burden of proof had shifted to the respondent and that it had not proved a non-discriminatory reason for its treatment of the claimant.

2. The Tribunal was entitled to consider the evidence overall. The principal allegations concerned the same decision-maker and were closely connected as aspects of initiating and progressing an unwarranted formal disciplinary process. This was unlike the unrelated allegations against several alleged perpetrators in Essex County Council v Jarrett. Section 136 of the Equality Act 2010 did not require separate and repetitive burden-of-proof analysis for each allegation.

3. The Tribunal had not treated a bare difference of race and treatment, or unfairness alone, as sufficient. It relied on the cumulative evidence: white employees were dealt with informally in similar circumstances; the claimant was swiftly subjected to formal investigation and transfer despite insubstantial and unparticularised allegations; other employees disciplined by the decision-maker were Asian; and the respondent’s explanations were not credible. Relevant disclosure failures were a permissible, but minor, additional factor.

4. The Tribunal permissibly used the other employees as evidential comparators. It was not required to construct a hypothetical comparator in elaborate detail. Its finding that a white employee in the same or similar circumstances would not have been investigated or transferred sufficiently addressed the statutory comparison.

5. The challenges to the Tribunal’s rejection of the respondent’s explanations, including the failure to interview a material witness, were impermissible attempts to re-argue factual issues. The Tribunal’s reasons were adequate when read fairly and as a whole. The respondent did not meet the especially high threshold for perversity.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 85.
• Employment Tribunal, Leicester: The judgment was sent to the parties on 22 March 2023. It upheld the claimant’s race discrimination claims concerning her transfer, disciplinary investigation, two investigatory meetings and the failure to consider a less formal response. It dismissed the allegation that allegations against her had been fabricated.