Employers must apply disciplinary processes consistently, transparently and proportionately, ensuring credible reasons and full disclosure of evidence. A failure to do so can lead to findings of unlawful discrimination. The case of Parmar v. Leicester City Council provides a clear example of how tribunals assess comparators, disclosure failures and the credibility of an employer’s explanation. We analyse what employers can learn from the case.
The background
Mrs Parmar, who is British and has Indian heritage, held a senior role at Leicester City Council (the Council). Following some disputes at work, her director suspended her and began disciplinary proceedings. The director invited Mrs Parmar to an investigation meeting but only told her about two general allegations, with no clear details of the case she had to answer.
The Council did not provide Mrs Parmar with recordings of investigation interviews or transcripts of the recordings as part of the disciplinary process. It also did not share them when the case progressed to the employment tribunal. Throughout the internal process, Mrs Parmar explained that she did not understand what she was being accused of. At the conclusion of the disciplinary process, the Council informed her that there was no case to answer and it would take no further action.
Mrs Parmar brought an employment tribunal claim, alleging that the Council had directly discriminated against her on the grounds of race by making false allegations and undertaking a disciplinary investigation. She relied upon two white colleagues as her evidential comparators and alleged that they had been treated differently by the Council in similar situations. She also pointed out that, since 2017, only senior managers from ethnic minorities at the Council had faced disciplinary action.
Tribunal and appellate decisions
The tribunal found in Mrs Parmar’s favour, concluding that:
- there was evidence that, in situations where the Council might reasonably have instigated a disciplinary investigation, but which involved employees of a different race to Mrs Parmar, the Council had opted for mediation or informal action rather than a formal disciplinary process. The tribunal drew negative inferences from this pattern of treatment; and
- the Council had failed to disclose key evidence, including video interviews and other records that led to the decision that there was no case to answer. During the tribunal disclosure process, it did not disclose highly relevant evidence such as notes of meetings in circumstances where it was obvious that they should have been preserved for the purpose of the proceedings. The tribunal drew adverse inferences from the Council’s failure to disclose this information.
The burden of proof then fell to the Council to show that Mrs Parmar was treated fairly and not subjected to less favourable treatment because of her race. After considering all the evidence, the tribunal was not satisfied that the Council had demonstrated there was a genuine, non-discriminatory reason for what happened to Mrs Parmar. The tribunal therefore found that direct discrimination was established.
The Council appealed this decision on the basis of a lack of reasoning and procedural missteps. The Employment Appeal Tribunal (EAT) rejected the Council’s appeal and upheld the tribunal’s finding of direct discrimination. The Council then took the case to the Court of Appeal, repeating its arguments that the tribunal had made errors, such as misapplying its treatment of comparators (thereby wrongly shifting the burden of proof to the Council), drawing unfair conclusions from the missing disclosure and failing to accept the Council’s explanations for its actions. The Court of Appeal dismissed the Council’s appeal on the basis that the tribunal had applied the correct legal tests, and its findings were evidence-based and sufficiently detailed. Specifically, the Court of Appeal held that:
- the circumstances of two white comparators relied upon by Mrs Parmar were sufficiently similar to her circumstances that the Council’s different treatment supported the tribunal’s inferences of discrimination;
- the Council’s explanations for its treatment of Mrs Parmar were found not to be credible and therefore the Council had not discharged its burden of proof, nor were their explanations determined to be capable of defeating an inference of discrimination; and
- the tribunal was entitled to draw adverse inferences from the Council’s disclosure failings.
Key lessons from the case
This case shows how important it is to keep good records during internal investigations and to give clear information to the employee under investigation of the allegations against them. It is a reminder that tribunals may draw inferences of discrimination from their findings of fact, where appropriate, given it is unusual to find direct evidence of discrimination. This means that the burden of proof often passes to the employer to show that it had a non-discriminatory reason for its actions. It will be difficult to overcome inferences of discrimination without disclosing relevant documentation.
Practical takeaways for employers
Be specific: Provide the employee who is under investigation with clear and specific details of what they are alleged to have done wrong.
Maintain clear records: Keep detailed, accurate notes during investigations and preserve all evidence, as disclosure failures can damage credibility.
Apply policies consistently: Follow disciplinary procedures fairly and consistently. If you deviate from your procedure, explain to the employee why you have done so and keep a note of your reasons.
Use proportionate processes: Consider whether informal resolution, mediation or coaching might be more appropriate than formal disciplinary action, especially in cases involving unclear or minor issues.
Assess comparator risk: Before taking action, consider how similar situations involving other employees have been handled and, to the extent it is possible, ensure you deal with cases in a consistent manner. If you decide to proceed with an investigation or disciplinary action in a particular case, ensure you can explain how it differs from a previous situation where you took no action.
Train managers: Provide training on equality law, unconscious bias and fair investigation practices.