Factual and Procedural Background
The Appellant, a local authority ("the Council"), dismissed the Respondent, a former employee ("Mrs Parmar"), on 26 April 2022. Prior to her dismissal, Mrs Parmar brought a race discrimination claim against the Council in the Employment Tribunal ("ET"), which succeeded. The Council appealed to the Employment Appeal Tribunal ("EAT"), which dismissed the appeal. The Council then appealed to this court, with permission granted. Appeals from the ET to the EAT and from the EAT to this court are limited to points of law, with the ET responsible for fact-finding. The primary issue on appeal was whether the ET erred in law.
Mrs Parmar's claim alleged racial discrimination by the Council, citing a pattern of discriminatory disciplinary action against Black, Asian, and Minority Ethnic ("BAME") managers compared to white managers within a specific division. She identified five specific acts of alleged discrimination, including false allegations, transfer from her role, initiation of a disciplinary investigation, attendance at disciplinary meetings with no case to answer, and failure to consider alternative dispute resolution.
The ET heard evidence over five days, including testimony from Mrs Parmar and Council witnesses. It found unanimously that the Council discriminated against Mrs Parmar by reason of her race and adjourned the remedy issue. The ET made detailed factual findings regarding the internal hierarchy, the nature of the allegations, the disciplinary process, and the Council's treatment of comparators. The Council appealed to the EAT on 11 grounds, which were all dismissed. The Council then raised four grounds of appeal before this court.
Legal Issues Presented
- Whether the ET and EAT erred in law in their treatment of comparators and the shifting of the burden of proof in a race discrimination claim.
- Whether the ET erred in drawing adverse inferences from the Council's failure to disclose certain documents.
- Whether the ET wrongly assessed the Council's non-discriminatory explanations for its treatment of Mrs Parmar.
- Whether the ET erred in its approach to the Council inviting Mrs Parmar to disciplinary investigation meetings as acts of less favourable treatment.
Arguments of the Parties
Appellant's Arguments
- The Council contended that the ET improperly treated evidential comparators as actual comparators without adequately considering material differences between their circumstances and those of Mrs Parmar.
- The Council challenged the ET's adverse inferences drawn from failures to disclose relevant evidence, arguing that the decision to withhold documents was made by the Council’s legal team and not by the decision-maker, and that no inference of discrimination should automatically arise.
- The Council submitted that the ET improperly substituted its own view for the Council’s reasons for initiating the disciplinary investigation and that the ET failed to properly consider each explanation separately.
- The Council argued that attending disciplinary meetings is a procedural right and cannot constitute less favourable treatment on racial grounds; thus, the ET erred in upholding this allegation.
Respondent's Arguments
- Mrs Parmar relied on a hypothetical comparator, arguing that she was treated less favourably than white British employees in similar circumstances, particularly regarding the initiation and conduct of the disciplinary investigation.
- She pointed to the disparate treatment of BAME and white managers, including the fact that only Asian employees had been disciplined by the decision-maker.
- Mrs Parmar contended that the Council's failure to disclose key evidence supported an inference of discrimination.
- She maintained that the disciplinary investigation was baseless and that the Council’s explanations were not credible.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| UCATT v Brain [1981] ICR 542 |
Limits on appellate review of Employment Tribunal findings; caution against substituting appellate views for fact-finder's. |
Emphasized that appeals on points of law require clear identification of error and caution against over-criticism of ET reasoning. |
| British Telecommunications Plc v Sheridan [1990] IRLR 27 |
Similar to UCATT v Brain; appellate restraint in reviewing ET findings. |
Supported the principle that appellate courts should read ET decisions fairly and holistically. |
| Brent London Borough Council v Fuller [2011] EWCA Civ 267; [2011] ICR 806 |
Guidance on appellate review and the limits of interference with ET findings. |
Reinforced the approach of avoiding hypercritical analysis of ET reasoning. |
| DPP Law Limited v Greenberg [2021] EWCA Civ 672; [2021] IRLR 1016 |
Clarified principles on appellate review of ET decisions on points of law. |
Applied to emphasize deference to ET's fact-finding absent clear legal error. |
| Frame v Governing Body of Llanwgiwg Primary School UKEAT/0320/19/EAT |
ET's duty to give adequate reasons for decisions. |
Referenced to assess sufficiency of ET's reasoning in this case. |
| Igen Limited v Wong [2005] EWCA Civ 142; [2005] ICR 931 |
Burden of proof shifting in discrimination claims and evidential framework. |
Applied as the primary practical guide to burden of proof and comparator analysis. |
| Martin v St Francis Xavier Sixth Form College Board [2024] EAT 22; [2024] IRLR 472 |
Clarified types of comparators: actual, hypothetical, evidential. |
Used to explain comparator concepts and ET's approach to evidential comparators. |
| Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 (EAT) |
Comparator evidence and its evidential role in discrimination claims. |
Supported the use of comparators as evidential tools for inference of discrimination. |
| Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337 |
Role and types of comparators in discrimination law. |
Quoted extensively to clarify comparator roles in the judgment. |
| Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 296 |
Approach to comparators and drawing inferences in discrimination claims. |
Applied to support ET’s approach treating comparators evidentially. |
| D'Silva v NATFHE [2008] IRLR 412 |
Limits on drawing adverse inferences from failure to disclose documents. |
Distinguished from this case where disclosure failure was a minor factor among many. |
| Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] ICR 56 |
Burden of proof in discrimination claims and requirement to prove facts supporting inference. |
Referred to emphasize that difference in treatment and protected characteristic alone do not shift burden. |
| Hewage v Grampian Health Board (Scotland) [2012] UKSC 37; [2012] ICR 1054 |
Interpretation of burden of proof provisions in discrimination claims. |
Quoted to caution against overemphasis on burden of proof where tribunal can make positive findings. |
Court's Reasoning and Analysis
The court began by reaffirming the applicable legal framework under the Equality Act 2010, particularly the two-stage test for direct race discrimination: (1) whether the claimant was treated less favourably than others, and (2) whether that treatment was because of race. The court noted the necessity of comparing the claimant's treatment to that of a comparator who is either actual or hypothetical, with no material difference in circumstances.
The court reviewed the ET’s detailed factual findings, including the internal Council hierarchy, the nature of the allegations against Mrs Parmar, and the treatment of other employees. It accepted the ET’s approach treating comparators primarily as evidential comparators rather than statutory comparators, consistent with established case law.
The court rejected the Council’s argument that the ET failed to consider material differences between comparators and Mrs Parmar, explaining that the ET was entitled to rely on the overall factual descriptions and to determine on a broad basis whether the comparators were sufficiently similar to support an inference of discrimination. The court endorsed the EAT’s view that the ET’s approach was consistent with the Council’s own submissions and established legal principles.
Regarding the failure to disclose documents, the court found no error in the ET drawing adverse inferences as one factor among many. It emphasized that the ET did not treat the failure as automatically shifting the burden of proof and was entitled to consider the Council as a single entity responsible for disclosure.
On the Council’s explanations for its conduct, the court held that the ET properly considered and rejected them as not credible or genuine reasons for the treatment of Mrs Parmar. The court noted that the ET’s assessment of credibility and reasonableness is a matter of fact and law, and no legal error was shown.
Concerning the allegation that inviting Mrs Parmar to disciplinary meetings constituted less favourable treatment, the court found that the ET was entitled to view these meetings as part of a baseless disciplinary investigation, which in context amounted to less favourable treatment. The ET’s reasoning that the second meeting was effectively Ms Lake’s decision was accepted.
The court acknowledged two potentially problematic passages in the ET judgment relating to the sequencing and wording of the burden of proof analysis but concluded these were not substantive legal errors when read in context. The judgment process is iterative, and minor imperfections in expression do not amount to legal error.
Holding and Implications
The court DISMISSED the Council’s appeal, affirming the decisions of both the Employment Tribunal and the Employment Appeal Tribunal.
The direct effect of this decision is that the finding of race discrimination against the Council stands, and the Council remains liable for the discriminatory treatment of the Respondent. No new precedent was established, and the decision reinforces established principles regarding the treatment of comparators, burden of proof, and appellate review of Employment Tribunal decisions on points of law.