Leicester City Council v Bindu Parmar

In a direct race-discrimination claim, actual employees may be used as evidential comparators even where material differences prevent them being statutory comparators. A tribunal need not itemise every similarity and difference if its factual findings make the comparison clear. A difference in protected characteristic and treatment, without more, does not shift the burden of proof. Relevant disclosure failures may support adverse inferences, but do not automatically shift that burden. On appeal, tribunal reasons must be read fairly and as a whole, without a pernickety or hypercritical analysis of isolated passages.

A former employee brought a race-discrimination claim against a local authority after being transferred from her role and subjected to a disciplinary investigation. The Employment Tribunal upheld parts of the claim, finding less favourable treatment compared with a hypothetical white comparator and that race had played a part in the decisions. It also relied on the treatment of other employees and adverse inferences from failures to disclose investigation material.

The Employment Appeal Tribunal dismissed the authority’s appeal on 11 grounds: [2024] EAT 85. The authority appealed on four grounds concerning evidential comparators, disclosure failures, the assessment of its explanations, and invitations to disciplinary investigation meetings. The central question was whether the Employment Tribunal had erred in law.

1. Appeal dismissed. The Employment Tribunal directed itself correctly and made detailed findings of fact. The Employment Appeal Tribunal was right to dismiss the appeal.
2. Under section 13 of the Equality Act 2010, the claimant had to show less favourable treatment because of race than the respondent treated, or would have treated, others. The comparison could be with an actual or hypothetical statutory comparator. Other employees could also be evidential comparators whose treatment assisted an inference of discrimination, despite differences preventing them from being statutory comparators.
3. The assessment of evidential comparators is a matter of fact and degree. The tribunal need not laboriously list every similarity and difference if its factual descriptions disclose the basis of comparison. The tribunal was entitled to consider the treatment of white managers and the treatment of Asian managers as part of the overall evidence. The absence of a statistically significant sample did not prevent the two identified cases being taken into account.
4. The burden under section 136 of the Equality Act 2010 shifts only where the claimant proves facts from which discrimination could properly be inferred in the absence of another explanation. A difference in protected characteristic and treatment alone is insufficient. Here, the totality of the evidence supported the inference, including the baseless and unparticularised investigation and the absence of a credible explanation.
5. The Employment Tribunal was entitled to draw adverse inferences from failures to disclose relevant interview recordings, notes and files. Those failures did not automatically shift the burden, but the inferences could be taken into account. The authority was one corporate entity, even if responsibility lay with its legal team or different officers.
6. The tribunal correctly assessed whether the authority’s explanations were credible and genuinely explained the treatment. An incredible explanation could not displace the inference of discrimination. Invitations to the first two investigation meetings formed part of the baseless investigation and could amount to less favourable treatment. The second meeting remained attributable to the original decision-maker because the decision to hold it preceded the change of investigator.
7. Two passages in the Employment Tribunal’s reasons might appear problematic in isolation. The judgment nevertheless contained the necessary two-stage reasoning and correct directions elsewhere. It was impermissibly pernickety to treat imperfect structure or wording as an error of law when the reasoning was clear from the judgment as a whole.

• Court of Appeal (Civil Division) — Appeal dismissed.
• Employment Appeal Tribunal — The Council’s appeal was dismissed: [2024] EAT 85.
• Employment Tribunal — The claim succeeded in part. Race discrimination was found in the transfer from the role, the disciplinary investigation, the first two investigation meetings and the failure to consider less proportionate alternatives. The allegation concerning false allegations was dismissed, and the allegation concerning the third meeting was not upheld.