Under the Equality Act 2010, an employee who claims direct race discrimination must show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different from theirs. If there are facts from which a tribunal could infer discrimination by the employer, the burden of proof then shifts to the employer to show that it did not discriminate.
Facts of the Case
In Leicester City Council v Parmar, the Court of Appeal upheld a finding of direct race discrimination where an employee was subjected to less favourable disciplinary treatment than two white colleagues and subject to disciplinary proceedings which were procedurally flawed.
Mrs Parmar, a British national of Indian origin with over 30 years’ experience in social work, was employed by Leicester City Council as a head of service. Following some disputes and complaints between service areas, Mrs Parmar was temporarily transferred from her post, and a disciplinary investigation was commenced. The letter inviting Mrs Parmer to the investigation meeting alleged two general failures but did not give details of dates, conduct, people involved, or the standards she was said to have breached. After a different manager took over the investigation, Mrs Parmar was informed that there was no case to answer and that the process was concluded. At no time was she provided with recordings or transcripts of interviews with witnesses which had led the second investigator to end the disciplinary process.
Mrs Parmar brought a claim of direct race discrimination against the Council. She alleged that the Council had made false allegations against her, transferred her from her role, commenced a disciplinary investigation only to then say there was no case to answer, and failed to consider more proportionate ways of dealing with the issues, including mediation. Mrs Parmar identified two white heads of service as comparators who had been implicated in conduct that was broadly similar to hers, if not more serious, but had not been subjected to such harsh treatment. Based on information received in response to a data subject access request, Mrs Parmar also noted that since 2017, no white senior managers had been disciplined, whereas two BAME senior managers had been.
The Employment Tribunal’s upheld Mrs Parmar’s claim, finding that she had proved facts from which an inference of discrimination could be drawn, since previous similar situations involving employees of a different race had been dealt with informally or via mediation. The Tribunal also drew adverse inferences from the Council’s conscious decision not to disclose the recordings, transcripts and investigation notes. This switched the burden of proof to the Council, which had failed, on the balance of probabilities, to provide a convincing non-discriminatory explanation.
This decision was upheld by the Employment Appeal Tribunal, and the Court of Appeal has now also dismissed the Council’s appeal. The Court of Appeal confirmed that Mrs Parmar’s comparators were sufficiently similar circumstances to allow the Tribunal to infer that the different treatment was because of race. The Tribunal found that the Council’s explanations did not adequately explain its conduct towards Mrs Parmar and were not credible. It was therefore open to the Tribunal to conclude that the Council had failed to prove that race was not a factor in its treatment of Mrs Parmar.
Concluding Remarks
This case is a reminder that failing to treat employees in similar circumstances consistently, without a credible and non-discriminatory explanation, will increase the risk of discrimination claims. It also illustrates the importance of carrying out a fair and proper disciplinary procedure. This should include setting out allegations as precisely as possible, disclosing relevant documents and other materials to the employee, and providing reasonable and evidenced explanations of disciplinary investigations and subsequent actions.
