Leicester City Council v Mrs B Parmar
Leicester City Council v Mrs B Parmar [2024] EAT 85
Facts
The Respondent, Mrs. B Parmar, was a long-serving Head of Service for Leicester City Council, a British National of Indian origin, with extensive social work experience and no prior disciplinary issues. The case stemmed from poor relations and conflict between her service area and another, headed by HM (white British). Incidents included HM swearing and sending an unfeasible email which led to a collective grievance against HM by Mrs. Parmar's team, for which Ms. Lake (Director of Adult Social Care) took no formal disciplinary action. Mrs. Parmar, in turn, accused Ms. Lake of unconscious bias against black and ethnic minority Heads of Service.
Following concerns raised by other colleagues (SCC, AE), Ms. Lake initiated a formal disciplinary investigation against Mrs. Parmar, leading to her temporary transfer from her role on 12 January 2021. The allegations against Mrs. Parmar were vaguely phrased, and she consistently stated she did not understand what she had done wrong. A key finding by the Employment Tribunal (ET) was that Ms. Lake had only ever disciplined or commissioned disciplinary investigations against employees of Asian origin of comparable status (JSB and KR), never against white employees. The investigation into Mrs. Parmar was subsequently discontinued by another director, Ms. Tote, who found no case to answer.
Held
The Employment Tribunal (ET) found that Leicester City Council had subjected Mrs. Parmar to direct race discrimination under Section 136 of the Equality Act 2010. The ET concluded that the burden of proof had shifted to the Respondent because Mrs. Parmar had established a prima facie case of discrimination. This was primarily due to the disparity in treatment: Ms. Lake's normal approach of informal resolution or mediation for white employees in comparable situations (like HM, AE, and JR) contrasted sharply with her decision to take "much more drastic action" – initiating a formal disciplinary investigation and temporary transfer – against Mrs. Parmar. The ET also noted that Ms. Lake had only ever disciplined Asian employees of comparable status. The ET rejected the Respondent's non-discriminatory explanations for their actions, finding them to be "without substance" or lacking merit.
Specifically, the ET upheld that Mrs. Parmar was treated less favourably because of her race regarding:
Her transfer from the Head of Service role on or around 12 January 2021.
The initiation of a disciplinary investigation against her around the same date.
Being required to attend disciplinary investigation meetings on 19 February and 22 April 2021.
The failure to consider lesser and more proportionate means (e.g., mediation) to address alleged issues.
The Employer appealed the ET's judgment on 11 grounds. The Employment Appeal Tribunal (EAT), presided over by Judge James Tayler, dismissed the appeal on all grounds, thereby upholding the ET's findings of race discrimination. The EAT affirmed the ET's approach to the burden of proof, its use of evidential and hypothetical comparators, and its overall reasoning, rejecting arguments that the ET relied on "mere difference in treatment" or "mere unreasonable treatment". The EAT emphasized the high threshold for establishing perversity and the need to read tribunal judgments "fairly and as a whole".
Comment
This case serves as a significant affirmation of the principles governing the burden of proof in direct discrimination claims under the Equality Act 2010. The EAT's judgment reinforces several key aspects:
Firstly, it clarifies that for the burden of proof to shift, a claimant must demonstrate more than a "bare difference in status and a difference in treatment". In Mrs. Parmar's case, the ET identified multiple, compelling "something more" factors, including Ms. Lake's consistent pattern of informal handling for white employees versus formal action for Mrs. Parmar in similar or less serious situations, particularly after Mrs. Parmar's accusation of bias. The EAT also supported the ET's consideration of Ms. Lake's prior disciplinary actions being exclusively against Asian employees.
Secondly, the judgment highlights the flexible and pragmatic approach to comparators in discrimination cases. The EAT endorsed the ET's use of "evidential comparators" (real individuals in similar, though not identical, circumstances) and the construction of "hypothetical comparators" to infer how a white employee would have been treated. This underscores that tribunals are not bound to find a "minutely exact actual comparator".
Finally, the EAT's robust dismissal of the employer's numerous appeal grounds underscores the high bar for overturning an Employment Tribunal's factual findings. The judgment reiterated the "benevolent reading" principle for tribunal decisions, cautioning against "pernickety critiques" and emphasizing that tribunals are not required to detail every piece of evidence or every step of reasoning, provided their conclusions are clear and well-reasoned "in the round". The outcome serves as a strong reminder to employers of the need for consistent and non-discriminatory application of disciplinary procedures.
