Leicester City Council v Parmar [2025] EWCA Civ 952

In this case, the Court of Appeal (“CA”) upheld an Employment Tribunal (“ET”) decision that the Respondent had directly discriminated against the Claimant on the grounds of race.

The Claimant, a British national of Indian origin with many years’ experience as a social worker, was employed by the Respondent as head of service for one of the Respondent’s service areas. The Claimant was investigated by the Respondent as part of a disciplinary process, but was not provided with any details of the allegations against her and ultimately the investigation was discontinued as there was no case to answer.

The Claimant brought a successful direct race discrimination claim in the ET in relation to the disciplinary investigation, claiming that she had been treated less favourably than white colleagues who had been involved in similar situations. The Claimant argued that she was treated more harshly than two other white colleagues even though they were implicated in more severe failures. Her claim also included allegations that another employee of the Respondent had a clear racially motivated pattern of discriminatory behaviour towards BAME staff. The Employment Appeal Tribunal (“EAT”) dismissed the Respondent’s appeal, and the Respondent appealed to the CA on grounds that the ET had made errors in its use of comparators and its application of the burden of proof.

The CA dismissed the appeal and upheld the ET’s finding of direct race discrimination. The CA agreed that:

1. The EAT was right to characterise the ET’s reliance on comparators as a reliance on evidential, rather than statutory comparators, and that the ET had not made an error in law by not itemising all the similarities and differences between the cases of the comparators and the Claimant.

2. The ET had not treated the Respondent’s failures of disclosure as ‘automatically’ shifting the burden of proof (which would have been an error of law). The evidence was clearly relevant and the ET had taken those failures into account to draw adverse inferences.

3. The EAT had not made an error of law in its consideration of the Respondent’s explanations for its conduct.

4. It was clear from the ET’s judgment as a whole that it had considered the decisions to have three disciplinary investigation meetings amounted to less favourable treatment and that that treatment was because of the Claimant’s race, because it was all part of a baseless investigation.
   

This case highlights the importance of ensuring consistency in disciplinary procedures. Where employees in comparable situations are treated differently, employers must ensure there is a credible non-discriminatory explanation and the employer is able to justify any differential treatment. The Respondent’s failure to disclose key documents was a key part of the case against it. Although this does not automatically shift the burden of proof, it still allowed the ET to draw adverse inferences of discrimination. It is therefore important for employers to properly document and to retain documentation relating to internal procedures.