Consistency in disciplinary processes

In Leicester City Council v Parmar, Mrs.Parmar, the claimant, was investigated by her employer, the respondent (a local authority), as part of a disciplinary process. The allegations against her were vague and lacked clarity. She claimed that she was being treated less favourably than white colleagues who had been involved in similar situations, and she brought a claim of direct race discrimination.

In discrimination claims, a claimant must first present facts which suggest that discrimination may have occurred. If they succeed in doing this, the burden of proof then shifts to the employer. This means the employer must then prove that the alleged treatment was not because of the particular protected characteristic.

The tribunal found that the facts of the case supported an inference of discrimination. This shifted the burden of proof to the respondent to show that the treatment was not because of race. The tribunal found that the Council had not provided a convincing explanation and upheld the claim. The Employment Appeal Tribunal agreed, and the Council then appealed to the Court of Appeal.

Court of Appeal's decision

The Court of Appeal dismissed the Council’s appeal and upheld the earlier findings of direct race discrimination.

The Court agreed that the comparators identified by the claimant were in similar enough circumstances to allow the tribunal to infer that the different treatment could have been because of race. It also found that the tribunal had acted appropriately in drawing adverse inferences from the respondent's failure to disclose certain documents, while making clear that this did not automatically shift the burden of proof.

The tribunal had carefully considered whether the respondent’s explanations were sufficient to displace the inference of discrimination. It found the explanations were not credible, and therefore were not sufficient to prove that race was not a factor in how the claimant was treated.

Learning points for employers

This case reinforces the importance of adopting consistent disciplinary procedures and, taking care when phrasing disciplinary allegations. If employees in comparable situations are treated differently, employers must be able to provide a credible explanation for this.  Where the initial facts support an inference of discrimination, the burden will shift to the employer to show that the treatment was not because of a protected characteristic. Therefore, the quality and credibility of an employer's explanation for its actions will be central to their ability to defend a claim of this nature. 

Sharmin Chowdhury is a solicitor at VWV.