Clifton Diocese v Janet Parker

In a direct discrimination claim, an Employment Tribunal must identify the alleged discriminatory act and the person said to have done it. It must then decide whether facts could support an inference that that person acted because of the protected characteristic. At the first stage, it assumes there is no other explanation; a respondent’s alleged lack of explanation is not itself evidence capable of shifting the burden.

Serious unfairness, procedural defects, or disbelief of an employer’s account do not, without a logical evidential connection, establish discrimination. Once the burden has shifted, the issue is whether the respondent proves a non-discriminatory reason, not whether its explanation was reasonable or coherent.

The claimant, a non-Catholic Head of Finance, was dismissed for gross misconduct after returning from adoption leave. The Employment Tribunal upheld her claims for unfair and wrongful dismissal. It also upheld four complaints of direct discrimination because of religion or belief, and a linked harassment complaint, arising from aspects of the disciplinary process.

The employer appealed only the religion or belief findings. It contended that the tribunal had used a collective list of unfair conduct by several individuals to shift the burden against a different alleged discriminator, and had wrongly treated the absence of an explanation as part of the first-stage burden analysis.

The central issue was whether the tribunal had lawfully applied the burden of proof under Equality Act 2010.

1. Appeal allowed. The findings of direct religion or belief discrimination could not stand. The Employment Tribunal had not carried out a logically permissible, actor-specific analysis of the burden of proof under section 136 of the Equality Act 2010.

2. At the first stage, the tribunal had to identify the particular acts alleged, the alleged discriminator, and facts from which it could infer that that person acted because of the claimant’s lack of Catholic religion or belief. It could analyse related acts together where that was justified, but could not rely generally on conduct by Mrs Murray, Mr Cook and Monsignor Massey to infer that Mrs Lawrence committed different acts for that protected-characteristic reason.

3. The tribunal also erred by treating the respondent’s failure to explain conduct as supporting an inference at the first stage. Under section 136, the absence of another explanation is assumed at that stage. The claimant must nevertheless prove facts capable of supporting the specified inference of discrimination.

4. Gross unfairness in a disciplinary process did not itself supply evidence of a religion or belief connection. The tribunal made no sufficient findings about Mrs Lawrence’s religion or beliefs, any animus towards the claimant’s lack of Catholic faith, or why criticism of the Catholic Church was a proxy for non-Catholic status. Nor could it reject explanations merely because they were not reasonable or coherent; the statutory question was whether the treatment was for a non-discriminatory reason.

5. The harassment finding depended on the defective direct-discrimination conclusion and was set aside. On remission, the tribunal must decide whether the allegation is to be determined as direct discrimination or harassment, since conduct amounting to harassment cannot also be a detriment for this purpose.

6. The discrimination and, if appropriate, harassment complaints were remitted to the same tribunal unless reconvening that panel proves impractical. The unchallenged findings on unfair and wrongful dismissal remained undisturbed.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the religion or belief discrimination and linked harassment complaints.
• Employment Tribunal: sitting at Bristol, upheld the claimant’s claims for unfair dismissal and wrongful dismissal, and upheld specified direct discrimination and harassment complaints. Its judgment was sent to the parties on 26 April 2024.