“The Parmar Principles” – Evidential Comparators, Adverse Disclosure Inferences & Appellate Restraint in Race Discrimination Claims

1. Introduction

Leicester City Council v Parmar ([2025] EWCA Civ 952) is now a leading Court of Appeal authority on three inter-locking questions in direct discrimination litigation under the Equality Act 2010:

How Employment Tribunals (ETs) may deploy “evidential comparators” where no strict statutory comparator exists;
When failures in disclosure can legitimately give rise to adverse inferences that assist in shifting the burden of proof; and
The boundaries of appellate intervention in fact-heavy discrimination cases.

The case arises from the dismissal and earlier disciplinary investigation of Mrs Parmar, a British-Indian Head of Service at Leicester City Council (“the Council”). She alleged that a white senior manager, Ms Lake, singled her out for a baseless disciplinary process while similar or more serious concerns about white managers were handled informally. After succeeding before both the Employment Tribunal and the Employment Appeal Tribunal (EAT), the Council appealed to the Court of Appeal on four points of law. The Court – Sir Patrick Elias LJ (giving the only reasoned judgment) with Whipple LJ and Lewison LJ concurring – dismissed all four grounds and endorsed what this commentary calls “the Parmar Principles”.

2. Summary of the Judgment

The Court of Appeal held that:

The ET was entitled to treat the conduct of white managers (HM, AE and JD) as evidential comparators – i.e., real-world examples whose treatment could help infer the employer’s motivation – even though they were not strict “statutory comparators” under s.23 Equality Act.
The ET committed no error in drawing adverse inferences from the Council’s non-disclosure or destruction of investigatory interview notes and recordings; those failures were relevant, but only one among several factors shifting the burden of proof.
The ET’s analysis of, and rejection of, the Council’s “non-discriminatory explanations” (including reliance on HR advice and alleged seriousness of concerns) was beyond appellate interference; it was neither perverse nor inadequately reasoned.
Inviting Mrs Parmar to disciplinary meetings (and the decision to open the investigation at all) constituted less favourable treatment that could plainly be racially motivated when contextualised within a baseless disciplinary process.

Accordingly, the Court affirmed the ET and EAT decisions in Mrs Parmar’s favour. Importantly, the Court also cautioned against the “pernickety” dissection of ET reasoning by appellants and emphasised appellate restraint in factual evaluations.

3. Analysis

3.1 Precedents Cited & Their Influence

Igen Ltd v Wong [2005] EWCA Civ 142 – foundational guidance on the two-stage burden-shifting test now codified in s.136 Equality Act. The Court confirmed that the ET’s approach was a “paradigm” application of Igen.
Madarassy v Nomura [2007] EWCA Civ 33 – clarified that a mere difference in protected characteristic and outcome is insufficient; there must be facts from which discrimination could properly be inferred. The Court noted the ET’s self-direction to Madarassy.
Shamoon v Chief Constable of RUC [2003] UKHL 11 & Watt v Ahsan [2007] UKHL 51 – distinguished between three kinds of comparators (actual/statutory, hypothetical, evidential). These authorities underpinned the Court’s endorsement of the ET’s “evidential comparator” methodology.
D’Silva v NATFHE [2008] IRLR 412 – a warning against automatic adverse inferences from disclosure defaults. The Court accepted the caveat but held the ET’s limited reliance was permissible.
UCATT v Brain, BT v Sheridan, Brent LBC v Fuller, DPP Law v Greenberg – cited for the “no pernickety analysis” principle and deference to ET fact-finding.
Martin v St Francis Xavier Sixth Form College [2024] EAT 22 – recent restatement of comparator taxonomy which the Court relied on heavily when upholding the EAT’s reasoning.

3.2 Court’s Legal Reasoning

Evidential Comparator Doctrine. Even if an actual comparator is unavailable, the ET may look at how a respondent treated others in loosely similar situations as “evidence” of discriminatory motivation. The more material the similarity, the stronger the inference; that is a matter of fact and degree for the ET. Here, Ms Lake’s lenient handling of swearing, bullying emails and safeguarding failures by white managers contrasted starkly with the rapid escalation against Mrs Parmar.
Adverse Inferences from Disclosure Failures. Interview recordings and notes lay uniquely within the Council’s control. Deliberate or negligent withholding – especially where the employer relies on its investigation for justification – can legitimately bolster an inference that the true reason was discriminatory. The Court reiterated that such inferences are permissive not automatic; weight is for the ET.
Burden-Shifting Application. Multiple findings cumulatively satisfied stage 1 of s.136: disparate treatment of Asian employees, the baseless nature of the allegations, inconsistent resort to formal procedures, and disclosure irregularities. The Council’s seven proffered explanations were held implausible or irrelevant; therefore, it failed at stage 2.
Appellate Restraint. The Court criticised the Council’s “wood for the trees” approach, echoing the EAT’s warning that prolix grounds can signal weakness. Unless clear legal error or perversity is shown, appellate courts must not substitute their own factual preferences.

3.3 Anticipated Impact

Parmar is poised to influence employment litigation in at least four ways:

Comparator Flexibility. ETs may more confidently rely on evidential comparators without constructing artificial hypotheticals, provided they explain why the chosen examples are sufficiently analogous.
Disclosure Discipline. Employers (and their legal teams) face heightened risk that poor document management or selective disclosure will feed adverse inferences. Proactive retention policies and transparent disclosure will be critical.
HR Advice Not a Shield. Reliance on HR recommendations will not automatically immunise managerial decisions from discrimination scrutiny. Decision-makers’ own motives remain central.
Streamlined Appeals. The decision serves as a stern reminder that the Court of Appeal will not entertain extensive factual re-litigation disguised as points of law; practitioners will recalibrate appeal strategies accordingly.

4. Complex Concepts Simplified

Statutory Comparator: A real person in materially identical circumstances except for the protected characteristic.
Hypothetical Comparator: An imagined person created by the tribunal to ask “what would have happened if…”.
Evidential Comparator: Any other employee (even if circumstances differ) whose treatment can help prove or disprove discriminatory intent; a piece of circumstantial evidence rather than a strict legal benchmark.
Burden Shifting (s.136 Equality Act): If the claimant shows facts that could properly suggest discrimination, the onus moves to the employer to prove benign reasons.
Adverse Inference: A legal inference that missing documents or testimony would have undermined the party who failed to produce them.
“Perversity” Standard on Appeal: A very high bar – the ET’s factual findings must be irrational or perverse before an appellate court will intervene.

5. Conclusion

Leicester City Council v Parmar crystallises modern principles governing comparators, disclosure and appellate scrutiny in discrimination law. The Court of Appeal affirmed that:

Tribunals may draw on evidential comparators without being hamstrung by statutory exactitude;
Non-disclosure (even by legal teams) can justifiably bolster an inference of discrimination;
Employers bear a heavy burden to provide credible, detailed and consistent justifications once the inference threshold is crossed; and
Appellate courts will not nit-pick well-reasoned, evidence-based ET decisions.

Collectively, these holdings – the Parmar Principles – strengthen claimants’ ability to establish prima facie cases where overt evidence is rare, promote rigorous disclosure practice, and reinforce respect for ET fact-finding. Employment practitioners and HR professionals alike should adjust litigation strategies, investigation protocols and document-retention policies to align with this authoritative precedent.