Leicester City Council v B Parmar

Outline facts

“Failure to behave in accordance with agreed management/leadership standards, both ASC specific and as set out in the code of conduct and professional social work standards;

Failure to ensure that people you directly manage behave in accordance with agreed standards;

That these failures have created an environment that is detrimental to individuals and to the delivery of core functions, which could impact on people who need our support”

I hope you can understand that I have been interviewed for 3 hours now and I still don’t know what I have failed in. What code of conduct have I failed in? What professional standard have I failed in? Why can’t somebody tell me what I have done wrong?

The only other Head of Service to be the subject of a disciplinary investigation was JSB who is of Asian origin. The only other person of a comparable grade to the Claimant against whom a disciplinary investigation was commissioned by Ms Lake was KR, who is also of Asian origin. Ms Lake has not commissioned any disciplinary investigations against any white employees of a comparable status.

The Issues in the Employment Tribunal

Did the Respondent subject the Claimant to the following treatment:

Making false allegations against the Claimant on or around 12 January 2021;

Transferring the Claimant from her role as Head of Service;

Causing a disciplinary investigation to be carried out against the Claimant on or around 12 January 2021;

Causing the Claimant to have to attend several disciplinary investigation meetings only for the Claimant to be advised that there was no case to answer;

Not considering lesser and more proportionate means of dealing with any alleged work or conduct issues by the Claimant such as mediation on or around 12 January 2021.

The Employment Tribunal’s direction as to the law

13 Direct discrimination

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

23 Comparison by reference to circumstances

On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.

136 Burden of proof

This section applies to any proceedings relating to a contravention of this Act.

If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

But subsection (2) does not apply if A shows that A did not contravene the provision.

In Madarassy v Nomura International Plc [2007] IRLR 246, the Court of Appeal (approving Igen) made it clear that the burden does not shift to the employer simply on the Claimant establishing a difference in status (for example a difference in race) and a difference in treatment. Such would only indicate a possibility of discrimination, not that there was in fact discrimination. “Could conclude” must mean that a reasonable Tribunal could properly conclude from all the evidence before it. Thus the first stage of the two-stage process envisaged by section 136 EA 2010 is to consider whether the Tribunal could properly conclude from the facts whether discrimination is a possible explanation for the treatment. At the second stage, once the Tribunal is satisfied that the Claimant has proved facts from which an inference of discrimination can be drawn, the Respondent must provide a non-discriminatory explanation for its treatment of the Claimant. If, on a balance of probabilities, the Respondent is not able to show that discrimination was not the reason for the treatment the Claimant must succeed. If the Respondent discharges the burden by proving, for example, that a non-discriminatory reason for the treatment exists, then the claim must fail.

The conclusion of the Employment Tribunal

Having considered the evidence we are satisfied that the Claimant has

established a prima facie case, that is to say the Claimant has proved facts from which an inference of discrimination might be drawn and the burden thus shifts to the Respondent to establish a non-discriminatory reason for the treatment.

We arrive at that conclusion for the reasons below but in essence it is because in a number of comparable situations where a disciplinary investigation might reasonably have been instigated Ms Lake chose not to do so when it involved employees of a different race to that of the Claimant. Instead her normal approach was to offer mediation or to deal with it informally by discussion. In the case of the Claimant however she decided to take much more drastic action and she did so after she had been accused of unconscious racial bias. In particular we take into account the following:

HM had admitted to swearing. It was undoubtedly inappropriate conduct and was viewed as such by Ms Lake at the time because she took the time to go and see HM personally.

HM sent an email which caused such consternation that it led to a collective grievance yet no disciplinary investigation was commenced against HM. Whilst the final outcome as to the distribution of work was agreed by Ms Lake the manner in which it was done clearly offended others to the extent that they felt a collective grievance was necessary. There was nothing equally serious against the Claimant.

JR made strong allegations against JD that she said were ‘designed to cause humiliation and denigrate’. Ms Lake chose to offer mediation rather than instigate an investigation.

Despite victimisation of SR being a central allegation against Mrs Parmar (by AE) Ms Lake never interviewed SR which suggests she could not have thought there was any substance in the allegation. We do not consider the reason for not interviewing SR was that Ms Lake had simply not got round to it. Ms Lake had completed all of the nine proposed interviews by 5 February 2021. SR was never on the list of people to be interviewed. The Claimant was interviewed after the others which suggests that Ms Lake had decided to complete all her interviews until she got to the Claimant. It would make no sense to leave a meeting with SR after the Claimant.

The issue involving AE and the matter which HM thought was ‘escalated beyond all reason’ concerned JR and not the claimant. Mrs Parmar had acted properly in seeking advice from JD.

The only employees that Ms Lake has ever disciplined are of Asian ethnicity. … [emphasis added]

Mr Livingston argues that the allegations against the Claimant were serious and it was right and proper that there should be an investigation. The fact that nothing came of them in the end was irrelevant it is only when the allegations were properly investigated that it could fairly be concluded that no action was necessary. He also points out that in cross examination the Claimant accepted that there were serious concerns or that these were serious allegations .

We will deal briefly with the concession. In fairness to the Claimant her concession was subject to the proviso that they were only serious “if they were correct” which she did not believe they were

The Claimant clearly did not accept that these were serious allegations at the relevant time because she had consistently complained that there was no substance to them and she did not understand what she was supposed to have done wrong. Furthermore, Ms Lake never informed the Claimant of the allegations by AE and SCC. The Claimant only discovered them during the disclosure process in this case. She was therefore hardly in a position to admit they were serious if she did not know anything about them. [emphasis added]

The reality is that there was nothing of substance to start a disciplinary investigation. There is nothing to suggest that Senior Managers such as Ms Lake routinely initiate such investigations. Ms Lake must have appreciated there was nothing of substance because the wording of the allegations calling Mrs Parmar to an investigation did not set out any identifiable acts of misconduct. Ms Tote decided quite properly to discontinue the investigation once she considered the evidence. There is nothing to suggest Ms Lake would have discontinued it if she had not been removed from the process by Mr Samuels.

The e-mail sent by AE on 16 December raised general concerns about Locality West and not about the Claimant in particular. The two specific complaints were about another employee who was said to have spoken in an inappropriate or overly harsh way and who challenged a simple administrative request.

We conclude on the evidence that when it came to assessing the merits of behaviour allegations against white employees such as HM, AE and JR, Ms Lake was slow to move to formal measures. In the case of the Claimant she moved fairly speedily to investigation and suspension for something which was either at the same or lower level of alleged misconduct. We are satisfied that race played a part in her decisions. There is no other credible explanation. [emphasis added]

We also draw adverse inferences from the failure by the Respondent to disclose relevant evidence. There was a conscious decision by the Respondent (or their legal team) not to disclose highly relevant evidence. It was clearly relevant because it was on the basis of such evidence that Ms Tote decided there was no substance in the allegations and decided as a consequence to terminate the investigation.

In fact it is not only the recordings of interviews that the Respondent has failed to disclose. Ms Lake said she made notes of witness interviews and may have shared these with HR. She may have typed them and saved them as a file. None of these notes or files have been disclosed. Miss Tote said she took notes from the investigation meetings which she kept for 6 months. The Claimant began proceedings on 7 May so the need to preserve such notes would have been obvious from the outset. Ms Tote’s notes have not been disclosed. Ms Tote also interviewed OC and at least some interviews were recorded. Those recordings have not been disclosed. [emphasis added]

We have considered the potential non-discriminatory explanations relied on by the Respondent. They are as follows:

That the disciplinary procedure was appropriate in order to speak to witnesses and gather evidence.

This argument is without substance. There was nothing preventing Ms Lake from making informal enquiries as she often did. Not every enquiry requires a formal investigation and suspension so that witnesses can be interviewed. Ms Lake was quite content to ask SCC to set out her concerns in writing.

2 That Ms Lake spoke to HR and it was agreed that this was the appropriate action to take.

Ms Lake cannot hide behind HR’s actions or advice. It was her managerial decision to instigate a disciplinary investigation and temporary suspension.

The disciplinary process was preferable to any potential grievance procedure because it did not rely on complainants to raise grievances.

This was never offered as a rationale at the time and in any event has no merit. It is somewhat bizarre to suggest that because no-one had lodged a grievance that this somehow made a disciplinary process appropriate.

That when Ms Lake had raised issues with the Claimant in the past they had not been acknowledged as valid concerns.

This is an argument that appears to have been developed in the course of Ms Lake’s evidence. In cross-examination Ms Lake could only give three examples where the Claimant had failed to acknowledge past issues. One was in October 2020 when Ms Lake told the Claimant to think carefully about her tone of emails as they could come across as ‘curt and dismissive’. The email in question was not included in the bundle so we were not able to assess it fully. Clearly it was not seen as significant otherwise it would not have been omitted from the bundle. In any event the Claimant had replied to say that she was happy to discuss this at the next 1:1 meeting and Ms Lake had written back to say: ‘That’s fine - I know we won’t see eye to eye on the tone thing’. At the next meeting the issue was not even raised.

The second example relates to a discussion at a supervision meeting on 8 January in which Ms Lake had noted that she had seen emails from Locality West managers, including the Claimant, that she perceived to be ‘rude and aggressive’. Those emails have not been included in the bundle either so the same observation applies.

The third relates to a supervision meeting on 3 March 2020 where it was noted that there were:

“wider concerns expressed by people who did not wish to formalise their concerns. . . . about how working with some colleagues in West makes them feel - anxious, berated, attacked... BP reflected with RL on the individuals involved and their style/approaches/strengths/areas that require support or challenge and how RL could develop the relationships with TLs, JR in particular.”

This concerns discussions some 10 months before the Claimant was subjected to an investigation. It was therefore largely historical. Ms Lake could scarcely have been thinking of this in January 2021 when she was deciding whether to start a disciplinary investigation.

That given the potential misconduct an investigation was appropriate.

There was no potential misconduct in reality. The allegations have never been particularised.

That at the time Ms Lake had received statements and emails from SCC, AE and a conversation with AE about AE’s intention to resign

The suggestion of AE resigning was clearly not serious nor do we find Ms Lake treated it as such. The matters relating to AE and SCC could not have been seen as serious because they were never communicated to the Claimant.

That there was potential targeting of SR and allegations of victimisation.

If Ms Lake had genuinely believed SR was being targeted it was at least necessary to interview him. SR had not complained of victimisation himself. [emphasis added]

We are satisfied in all of the circumstances the Respondent has not established, on a balance of probabilities, a non-discriminatory explanation for the treatment of the Claimant. [emphasis added]

We are also satisfied that (in the same or similar circumstances involving a white employee or at any rate one who was not Asian) Ms Lake would not have initiated a disciplinary investigation or suspended an employee from their role as Head of Service. We are satisfied the Claimant has been treated less favourably because of her race. [emphasis added]

Issue 1

Making false allegations against the Claimant on or around 12 January 2021.

We do not find that the allegations were manufactured or fabricated. This allegation, as framed, is therefore dismissed.

Issues 2 and 3

Transferring the Claimant from her role as Head of Service and causing a disciplinary investigation to be carried out against the Claimant on or around 12 January 2021.

We are satisfied that the Claimant was treated less favourably than a hypothetical white comparator would have been (that is to say someone who was white British) in the same or similar circumstances for the reasons given above. These two allegations are therefore upheld.

Issue 4

Causing the Claimant to have to attend several disciplinary investigation meetings only for the Claimant to be advised that there was no case to answer.

The allegation is in relation to the disciplinary investigation interview conducted by Ms Lake on 19 February 2021, the first meeting with Ms Tote on 22 April 2021 and the meeting with Ms Tote on 7 May 2021.

The allegation in relation to the meetings on 19 February and 22 April are upheld for the reasons given above. Although Ms Tote took the latter meeting, and no allegation of discrimination is made against her, the decision to hold that meeting was really that of Ms Lake, the meeting having been postponed from its original intended date of 24 February when the Claimant fell ill. The second meeting was effectively a continuation of the first.

The allegation in relation to the meeting on 7 May is not upheld. The purpose of that meeting was simply to inform the Claimant that the investigation was to be discontinued. It is possible that the Claimant could have been informed prior to that date of discontinuance but there is nothing discriminatory about that. In any event it was not a ‘disciplinary investigation’ meeting.

Issue 5

Not considering lesser and more proportionate means of dealing with any alleged work or conduct issues by the Claimant such as mediation on or around 12 January 2021.

This allegation also succeeds for the reasons given above. [emphasis added]

The Appeal

An error of law should be easy to identify in a few words. The experience of the Judges of the EAT over many years is that short and focussed grounds of appeal are usually more persuasive than a long one and, in general, the more grounds raised the more it suggests that none is a good one.

The test on appeal

… Any court with the experience of the members of the Employment Appeal Tribunal, and in particular that of the industrial members, will in the nature of things from time to time find themselves disagreeing with or having grave doubts about the decisions of Industrial Tribunals. When that happens, they should proceed with great care. To start with, they do not have the benefit of seeing and hearing the witnesses, but, quite apart from that, Parliament has given the Employment Appeal Tribunal only a limited role. Its jurisdiction is limited to a consideration of questions of law.

On all questions of fact, the Industrial Tribunal is the final and only judge, and to that extent it is like an industrial jury. The Employment Appeal Tribunal can indeed interfere if it is satisfied that the Tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, in the sense explained by Lord Justice May in Neale v Hereford & Worcester County Council [1986] ICR 471 at 483.” [emphasis added]

The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the tribunal without committing error of law or reaching a perverse decision on that point.

Other danger zones are present in most appeals against tribunal decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.

Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision. The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.” [emphasis added]

The following principles, which I take to be well established by the authorities, govern the approach of an appellate tribunal or court to the reasons given by an employment tribunal:

The decision of an employment tribunal must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation, and without being hypercritical. In Brent v Fuller [2011] ICR 806, Mummery LJ said at p. 813:

This reflects a similar approach to arbitration awards under challenge: see the cases summarised by Teare J in Pace Shipping Co Ltd v Churchgate Nigeria Ltd (The “PACE”) [2010] 1 Lloyds' Reports 183 at paragraph 15, including the oft-cited dictum of Bingham J in Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14 that the courts do not approach awards “with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the object of upsetting or frustrating the process of arbitration”. This approach has been referred to as the benevolent reading of awards, and applies equally to the benevolent reading of employment tribunal decisions.

A tribunal is not required to identify all the evidence relied on in reaching its conclusions of fact. To impose such a requirement would put an intolerable burden on any fact finder. Nor is it required to express every step of its reasoning in any greater degree of detail than that necessary to be Meek compliant (Meek v Birmingham City Council [1987] IRLR 250). Expression of the findings and reasoning in terms which are as simple, clear and concise as possible is to be encouraged. In Meek, Bingham LJ quoted with approval what Donaldson LJ had said in UCATT v Brain [1981] I.C.R 542 at 551:

It follows from (2) that it is not legitimate for an appellate court or tribunal to reason that a failure by an employment tribunal to refer to evidence means that it did not exist, or that a failure to refer to it means that it was not taken into account in reaching the conclusions expressed in the decision. What is out of sight in the language of the decision is not to be presumed to be non-existent or out of mind. As Waite J expressed it in RSPB v Croucher [1984] ICR 604 at 609-610:

Moreover, where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should, in my view, be slow to conclude that it has not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal's mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced specialist tribunal applying very familiar principles whose application forms a significant part of its day to day judicial workload.”

“Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached’. Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal it must proceed with ‘great care.’”

The relevant principles can be summarised as follows:

The duty to give reasons is a duty to give sufficient reasons so that the parties can understand why they had won or lost and so that the Appellate Tribunal/Court can understand why the Judge had reached the decision which s/he had reached;

The scope of the obligation to give reasons depends on the nature of the case;

There is no duty on a Judge, in giving his or her reasons, to deal with every argument presented by counsel in support of his case:

The Judge must identify and record those matters which were critical to his decision. It is not possible to provide a template for this process. It need not involve a lengthy judgment;

The judgment must have a coherent structure. The judgment must explain how the Judge got from his or her findings of fact to his or her conclusions;

When giving reasons a Judge will often need to refer to a piece of evidence or to a submission which s/he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question; and

It is not acceptable to use a fine-tooth comb to comb through a set of reasons for hints of error or fragments of mistake, and try to assemble them into a case for oversetting the decision. Nor is it appropriate to use a similar process to try to save a patently deficient decision.”

The Grounds of Appeal

Ground 1: Misapplication of the law - Failure to consider the burden of proof in relation to each allegation separately

We are of the view that it was an error to take a blanket approach, and to regard the burden of proof as shifted on all allegations. Although it may create a difficult task for some Tribunals who are faced with a very significant number of allegations to analyse each by asking in respect of each separately whether less favourable treatment by reference to an actual or hypothetical comparator has been established, whether detriment exists and whether in the light of those findings and others the burden of proof might be shifted, in practice we think that those problems can be overstated. Although each allegation must of course be looked at separately, since it forms a separate complaint, the fact that there are other allegations that are thought individually to be substantiated will give force to the suggestion in respect of the next allegation that it too is to be substantiated, and the next beyond that, such that there is such evidence as justifies the reversal of the burden of proof in respect of each of those allegations. Each allegation if substantiated necessarily has an effect upon each other allegation, just as each allegation if not substantiated may equally inform a decision on another though it will not be decisive of it. If the Tribunal had made it clear that it was adopting some such approach, we would have found it easier to accept it, but it did not. Its adoption of a blanket approach was unreasoned.

There was no obligation on the tribunal to refer to the two-stage process again in relation to each and every complaint or indeed to adopt the two-stage process in relation to each and every complaint if the tribunal considered it was not appropriate to do so.

Ground 2: Use of a mere difference in treatment to shift the burden of proof

The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

Section 13 of the EqA requires that two matters be established for there to be a finding of direct discrimination. The first is that there has been treatment of the claimant (A) which is less favourable than the treatment that was meted out, or would have been meted out, to a comparator (B). The second is that the less favourable treatment was on the ground of the protected characteristic. Whilst it is open to an Employment Tribunal to go straight to the second question, the “reason why” question (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337, at paragraph 8, per Lord Nicholls of Birkenhead) it is common for a Tribunal to consider the “comparator” question, as the Tribunal did in the present case.

There are three potential types of comparator: an actual (or statutory) comparator, an evidential comparator, and a hypothetical (statutory) comparator.

An actual comparator exists when there is no material difference between the circumstances relating to the claimant’s case and the comparator’s case. Express statutory provision is made for such a comparator in section 23(1) of the EqA, which states,

A comparison with an actual comparator (also known as a statutory comparator) may support or undermine a claimant’s case.

However, it is clear that, even where the circumstances of a proposed comparator are not materially the same as those of the claimant, a Tribunal may take account of the way in which the respondent treated that person if there are some relevant similarities between their circumstances. A Tribunal may be assisted by seeing how unidentical, though not wholly dissimilar, comparators had been treated in relation to other individual cases. See Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 (EAT), at paragraph 7, per Lindsay J. Such comparators are known as evidential comparators.

Furthermore, a Tribunal may consider whether it is assisted by considering how a hypothetical comparator in a similar (i.e. not materially different) position to the claimant, but who does not have the protected characteristic, would have been treated. Such a hypothetical comparator will be a statutory comparator, for the purposes of section 23.

It should be borne in mind, however, that the purpose of a Tribunal’s consideration of comparators is to use it as an evidential tool to see whether an inference of discrimination is justified. It is not an end in itself. This was made clear by Lord Scott of Foscote in Shamoon, in the course of a very helpful summary of the law relating to comparators, at paragraphs 107-110:

We mention in passing that, at paragraph 109 of the passage cited above, Lord Scott was using the phrase "actual comparator” in a different way from the way in which the Tribunal in the present case, and we, have been using it. Lord Scott used the phrase “actual comparator” to mean a real person, as opposed to a wholly hypothetical person, whether that real person satisfied the statutory test in s23 or was an evidential comparator. The Tribunal and the Appeal Tribunal have been using the phase “actual comparator” to mean a real person who is a statutory comparator for the purposes of s23, and the phrase “evidential comparator” to mean a real person who is not a statutory comparator. Nothing rests on this difference of terminology. We should add that a hypothetical comparator will be a statutory comparator, because of the words “or may treat” in section 23 (see, Shamoon, at paragraph 108): when looking at a hypothetical comparators, a tribunal will be looking at someone who is in the identical circumstances as the claimant, but who does not possess the protected characteristic.

For practical purposes, it may not make a great deal of difference as to whether a comparator is an actual comparator or an evidential comparator. In Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 296, Lord Hoffman, with whom all of the other Lords agreed, said:

The question, in direct discrimination cases, as to whether the situations of the claimant, on the one hand, and the proposed comparator, whether actual or evidential, on the other, are comparable is a question of fact and degree: Hewage v Grampian Health Board [2012] UKSC 37; [2012] ICR 1034. The Supreme Court upheld the view of the Inner House of the Court of Session, restoring the decision of the Employment Tribunal, that unless the Employment Tribunal’s judgment could be said to be absurd or perverse it was not for the Appeal Tribunal to impose its own judgment on the point. To like effect, in Kalu v Brighton & Sussex University Hospitals NHS Trust (UKEAT/0609/12), Langstaff P said, at paragraph 24, that the identification of a comparator is a question of fact.

In order for a comparator to be an actual or statutory comparator, is not necessary that the circumstances are the same in every particular. In Vento, above, Lindsay J said, at paragraph 12:

In Kalu, at paragraph 24, Langstaff P said, “The purpose of making the comparison … needs to be understood before a comparator may properly be identified.” In our judgment, this is of central importance. Whether a point of difference has any significance or not depends on the nature of the less favourable treatment about which complaint is made. So, for example, if the complaint is about the claimant not being selected for a job, whilst the comparator was selected, the fact that the claimant and comparator have similar academic qualifications may well be relevant if the job required developed intellectual skills, but it is not relevant if the job requires solely manual labour or (to use one of Langstaff P’s examples) is to model clothing.

The interrelationship between the use of comparators and the shifting burden of proof has recently helpfully been considered by the EAT (HHJ Tayler) in Virgin Active v Hughes [2023] EAT 130; [2024] IRLR 4, at paragraphs 61-69,

We respectfully agree with this analysis, but it is important to emphasise that HHJ Tayler did not say that in every case in which the claimant has been treated less favourably than an actual (statutory) comparator, the burden of proof will shift. It is more likely that the burden of proof will shift, but it does not follow that in every case the burden of proof will shift. The Tribunal must apply the statutory test as set out in section 136(1), when deciding, in a particular case, whether the burden of proof has passed to the respondent.

The reasoning of the industrial tribunal on this issue is wholly defective. The Act of 1976 requires it to be shown that the complainant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant “less favourably” for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee “less favourably” for the purposes of the Act of 1976.

I cannot improve on the reasoning of Lord Morison, delivering the opinion of the court, who expressed the position as follows, 1997 S.L.T. 281, 284:

“The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.”

At ¶70 [13-14], the ET set out that the “essence” of the reason why they concluded that the burden of proof shifted was that Ms Lake decided to take much more drastic action against the Claimant than she did in a number of comparable situations where a disciplinary investigation might reasonably have been instigated (and which involved employees of a different race to that of the Claimant). Similar reasoning can be found in the ET’s analysis at ¶76 [15].

This was an error of law in that the core reason for finding that there was a prima facie case of discrimination was a difference in treatment between the Claimant and others.

¶70 … notes that the treatment of the Claimant by Ms Lake came after Ms Lake had been accused of unconscious racial bias (see also ¶19 …). It cannot be said that such an allegation, made two years prior to the treatment complained of, amounted to a fact from which race discrimination can be inferred. There was no contemporaneous finding that Ms Lake did in fact show unconscious racial bias and the ET made no such finding.

¶70.1-70.3 … simply set out the difference in treatment between the way in which the Claimant was treated and the way in which HM was treated (twice) and JR was treated. This is, at most, a mere difference in treatment, and is not something from which race discrimination can be inferred.

¶70.4… sets out the ET’s disbelief of the Respondent’s asserted reason for Ms Lake not interviewing SR. As discussed below under Ground 5, this was an error of law in itself. Regardless:

the ET did not find that Ms Lake was untruthful in this regard (she was not asked about this in cross-examination and therefore did not provide evidence on this topic) – therefore this cannot be said to amount to a fact from which race discrimination by Ms Lake can be inferred.

Even if it had found that this was a false reason given by an alleged discriminator, this provides little, if any, evidence to support a finding of unlawful discrimination itself (see Bahl).

… sets out that the ET thinks that the Claimant acted properly. At most, this amounts to a finding that the decision to investigate her was unreasonable. Unreasonable treatment is not sufficient as a basis for an inference of discrimination (see Zafar, Bowler, and Efobi).

¶70.6 …, in which the ET noted that the “only employees that Ms Lake has ever disciplined are of Asian ethnicity” is not a fact from which an inference of discrimination can be drawn.

This does not reflect a sufficiently large number of cases (one or two individuals other than the Claimant since 2017) for it to even come close to amounting to “’statistical’ evidence that may tend to show a discernible pattern of treatment by the employer to the Claimant's racial group from which a Tribunal might infer unlawful discrimination” (see Home Office v Kuranchie).

As below at Ground 6, this mischaracterises the ethnic/national origin relied upon by the Claimant as part of this claim.

¶71-74 … sets out the ET’s view on whether the Claimant should be held to her concession that the allegations were serious and then sets out the ET’s view that there was nothing of substance to commence a disciplinary. At most, this is a finding that the explanation for certain treatment was “inadequate, unreasonable or unjustified” (see Bowler) and does not by itself amount to a fact from which race discrimination can be inferred.

Finally, at ¶76, the ET reiterated that Ms Lake’s treatment of the Claimant was different to her treatment of HM, AE and JR … . This is, again, a mere difference in treatment without ‘something more’. The ET then concludes that they are satisfied that race played a part in Ms Lake’s conclusions as “There is no other credible explanation”. This is an error of law in itself, compounding the ET’s erroneous approach to the issue:

It suggests that the ET has analysed and rejected the Respondent’s explanations for the Claimant’s treatment at this stage of the burden of proof test, which would be erroneous.

Even if it was open to the ET to conclude at this stage that there was no other credible explanation for the Claimant’s treatment, it is not a fact from which race discrimination can be inferred. It is a considerable leap from a finding that the Respondent’s explanation was inadequate, to the positive finding that race was a reason.

It involves an implied finding that race playing a part in Ms Lake’s decision was a credible explanation. However, there is no analysis or explanation of why that was a credible explanation for how Ms Lake acted.

Ground 3: Failure to provide adequate reasons regarding the facts from which it concluded it could infer that treatment was because of race

As an overarching point, the ET singularly fails to identify what the “facts” are, from which it could conclude that Ms Lake’s treatment of the Claimant was because of her race.

In this case, the ET failed to identify the fact or feature capable of supporting an inference of discrimination; and has certainly failed to set out the primary facts from which any inference of discrimination is drawn ‘with the utmost clarity’. As a result, the Respondent has had to guess what those features might have been and, as set out above (at ¶14-15 of this skeleton argument), none of these actually amount to a fact or feature capable of supporting an inference of discrimination.

The ET therefore failed to provide adequate reasons for its decision.

Ground 4: Misapplication of the law - Erroneous approach to comparators

13 We infer, therefore, that there was no helpful actual comparator. This being so, we consider that the Tribunal had a duty to construct a hypothetical comparator against which they could test Mrs McLachlan's case. Their failure to do so involved an error of law because it goes to the manner in which the Tribunal is to approach the case (see Balamoody -v- The United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] EWCA Civ 2097 [2002] IRLR 288 at paragraphs 51 to 60 in the judgment of Lord Justice Ward). The obvious hypothetical comparator for the purposes of the exercise before the Tribunal in this particular case was a male part-timer with small children to care for and who would, or might, therefore, be as much of a clock-watcher as Mrs McLachlan, and had disobeyed an order so that he could go home on time in order to look after his child.

We are also satisfied that (in the same or similar circumstances involving a white employee or at any rate one who was not Asian) Ms Lake would not have initiated a disciplinary investigation or suspended an employee from their role as Head of Service. We are satisfied the Claimant has been treated less favourably because of her race.

We are satisfied that the Claimant was treated less favourably than a hypothetical white comparator would have been (that is to say someone who was white British) in the same or similar circumstances for the reasons given above. These two allegations are therefore upheld.

Ground 5: Findings of fact for which there was no evidence in support

At ¶70.4 …, the ET concluded that Ms Lake never interviewed SR “which suggests she could not have thought there was any substance in the allegation…We do not consider the reason for not interviewing SR was that Ms Lake had simply not got round to it”. Similarly, at ¶79.7 [16], when analysing the Respondent’s explanation for treatment in relation to the potential targeting of SR and allegations of victimisation, the ET relied on the fact that Ms Lake did not interview SR and uses it to impliedly conclude that Ms Lake did not genuinely believe SR was being targeted.

Ground 6: Misapplication of the law/material error - Erroneously describing the Claimant’s ethnic/national origin

Ground 7: Misapplication of the law - Erroneous approach to drawing adverse inferences from a failure to disclose relevant evidence

“…we have observed a tendency in discrimination cases for Respondents' failures in answering a questionnaire, or otherwise in providing information or documents, to be relied on by Claimants, and even sometimes by Tribunals, as automatically raising a presumption of discrimination. That is not the correct approach. Although failures of this kind are specified at item (7) of the “Barton guidelines” as endorsed in Igen Ltd. v. Wong [2005] ICR 931 (see at p. 957 B) as matters from which an inference can be drawn, that is only “in appropriate cases”; and the drawing of inferences from such failures — as indeed from anything else — is not a tick-box exercise. It is necessary in each case to consider whether in the particular circumstances of that case the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in the light of any explanation supplied it does in fact justify that inference. There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the Respondents did the act complained of, which in cases of direct discrimination is what the Tribunal has to decide. In such cases time and money should not be spent pursuing the point.”

Ground 8: Misapplication of the law – whether there was a non-discriminatory explanation for the treatment of the Claimant

Ground 9: Failure to take into account relevant factors – Respondent’s explanations for treatment

Ground 10: Conclusion for which there is no evidential basis/which is perverse

Ground 11: Conclusion for which there is no evidential basis/perversity/insufficient reasons (re issue 4)

Overall