CA-2024-001387 - [2025] EWCA Civ 952

Discussion

It is not necessary for me to say much about the law. There is no dispute about it. I can summarise it in six stages.

A claimant who claims that she has been directly discriminated against because of her race has to show that

the respondent has treated her less favourably

because of her race

than he treats or would treat others (section 13 of the 2010 Act).

Element 1.c. therefore requires the claimant to compare her case either with the case of an actual comparator, or with that of hypothetical comparator.

For that purpose, ‘there must be no material difference between the circumstances relating to each case’ (section 23 of the 2010 Act).

If there are facts from which a court could decide (in the absence of any other explanation) that R has contravened section 13, a court must hold that the contravention occurred, unless R shows that R did not contravene section 13 (section 136 of the 2010 Act).

Igen v Wong (see paragraph 54, above) gives practical guidance about the application of what is now section 136.

Paragraph 56 of the judgment of this court in Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] ICR 56, which makes clear that the burden of proof does not shift simply because a claimant proves a difference in protected characteristic and a difference in treatment. A claimant must prove facts from which an ET could properly draw an inference that the reason for the difference in treatment is discrimination.

This was relatively a simple case. Mrs Parmar’s case was clear from her particulars of claim. At that stage, her comparators were AE and HM. Her case was that she had been treated more harshly than they had even though they were implicated in safeguarding failures. She also relied on the disparate treatment of Asian and white managers. Her argument at the ET had two facets. First, she had been treated more harshly by Ms Lake than white managers whose conduct was broadly similar to hers, if not, perhaps, more serious (see paragraph 76 of the ET’s judgment, quoted at paragraph 47, above). By that stage, the comparators, on the evidence, were HM, AE and JD. Further, the disciplinary procedure against her was baseless because the charges against her were never particularised, she was never told what complaints SCC and AE had made against her (she only found out as a result of the disclosure process in the ET), and when a second manager, Ms Tote, took over the investigation from Ms Lake, Ms Tote decided that there was no case to answer and discontinued it. Second, Ms Lake had disciplined at least two Asian managers, and no white managers, and that supported Mrs Parmar’s claim. The ET heard the evidence, made detailed findings of fact, directed itself correctly in law, as Mr Allen accepts, and decided that her claims succeeded.

The EAT was right, in my judgment, to characterise the ET’s reliance on comparators as a reliance on evidential, rather than statutory comparators; indeed, that is the approach which, in its closing submissions, the Council invited the ET to take. The ET made extensive findings of fact. The ET did not err in law in not itemising all the similarities and differences between the cases of the comparators and Mrs Parmar. Indeed, it might be thought that that approach had, to some extent, been endorsed and encouraged by the Council’s written submissions to the ET. It was entitled to decide, on the basis of its findings of fact, that the circumstances of the evidential comparators were sufficiently similar to those of Mrs Parmar to mean that their different treatment by the Council supported an inference of discrimination. The making of a comparison is a matter of fact and degree for the ET, as Lewison LJ suggested to Mr Allen in the course of his oral submissions. The ET is not required laboriously to itemise the similarities and differences between each case; a factual description of each is sufficient, as the differences and similarities between the cases will be obvious from those descriptions. Nor is the ET required expressly to intone that the fewer the similarities between the cases, the less cogent a comparison is. That is self-evident (and see paragraph 37 of Watt v Ahsan, paragraph 60, above).

There is no substance in the Council’s argument that the ET misidentified the comparators. It is another example of a ‘pernickety’ criticism. First, AE and HM were the two white managers specifically identified in Mrs Parmar’s ET1 (see paragraph 5, above). In paragraphs 27, and 29-34 of its judgment, the ET made relevant findings about intemperate and disparaging emails sent by AE (see paragraphs 21-25, above), which the ET was entitled to view as conduct by AE which was similar to the conduct for which Mrs Parmar had, in unhelpfully vague terms, been criticised.

The Council is right to say that the reference to ‘JR’ in paragraph 76 is wrong. It is overwhelmingly likely that that reference to ‘JR’ is simply a typographical error, and that the ET intended to refer to ‘JD’. Paragraphs 21-23 of the ET’s judgment deal with an allegation of bullying behaviour made by JR against JD which Ms Lake dealt with by making an offer of mediation (see paragraph 18, above). That that is the correct interpretation of the ET’s judgment is supported by the matters which, ‘in particular’ the ET took into account in paragraphs 71-76 of its judgment, and which I summarise at paragraphs 42-47, above. The white managers identified in those passages are HM, AE and JD.

Nor is there any substance in the complaint about the Asian employees who were disciplined. Information about this was extracted from the Council by Mrs Parmar by making a DSAR. The Council’s evidence about this seems to have been from Ms Lake and not detailed. Mrs Parmar can scarcely be criticised for failing to adduce evidence about cases which were within the knowledge of the Council, and not hers. By the time of the ET hearing, two of Asian employees referred to in the DSAR had been identified (JSB and KR); in contrast with the position taken by the Council in its ET3 (see paragraph 7, above). The case advanced by Mrs Parmar on this part of the case was in paragraph 2 of her particulars of claim (paragraph 4, above). It does not matter that this was not a statistically significant sample. The two cases were part of the overall evidence and the ET was entitled to take them into account.

I would dismiss ground 1.

The ET did not treat the Council’s failures of disclosure as ‘automatically’ shifting the burden of proof, which would have been an error of law. The evidence was clearly relevant, as, for example, it would have enabled the ET to assess what, if anything, had changed between the evidence which Ms Lake took into account and the evidence which Ms Tote considered. The ET’s approach was to take those failures into account. It did not say, in paragraphs 77 and 78 (see paragraph 48, above) that those failures shifted the burden of proof. What it said, instead, was that it drew adverse inferences from those failures. It was entitled to do so, and also to take those inferences into account. The ET was alive to the possibility that the failures might have been the responsibility of the Council’s legal team. In this context, the Council is one corporate entity. An ET is entitled to draw an inference from disclosure failures by the Council whether or not different individuals were directly or indirectly responsible for it.

There is nothing in the criticism that neither the ET nor the EAT quantified the effect of those failures. Such a requirement is exactly the kind of stricture which an appellate court should avoid when considering a judgment of the ET. Finally, it is not ‘inexplicable’ that the ET drew an adverse inference from the failure to disclose Ms Tote’s notes of her interviews. I repeat the point I made in the previous paragraph. After all, Ms Tote had concluded that there was ‘no substance in the allegations’ which Ms Lake had initiated and pursued.

Like the EAT, I would dismiss ground 2.

In my judgment there was no error of law in the ET’s consideration of the Council’s explanations for its conduct. It considered those explanations in paragraph 79, in over a page and a half of detailed reasons, which I summarised in paragraph 49, above. On these facts, there is little more than a cigarette paper between asking whether the Council’s reasons ‘explained its actions’ in the sense of being the Council’s real reasons for acting as it did, and the question whether or not the ET agreed with those reasons. It is clear to me that the ET was not persuaded that the Council’s evidence did ‘explain’ its actions. Moreover, it is also clear that the ET did not think that the explanations were credible (see paragraph 74 of the ET’s judgment; paragraph 45, above; and see the last sentence of paragraph 76; paragraph 47, above). If the explanations were not credible, they could not displace an inference of discrimination. Finally, there is nothing in the complaint that the ET wrongly characterised the Council’s decision to transfer Mrs Parmar as a temporary suspension. The ET seems to have used those terms interchangeably: see paragraph 84 of the ET’s judgment (paragraph 51.2, above).

Like the EAT, I would dismiss ground 3.

Mr Livingston had rightly accepted in his closing written submissions that the gist of Mrs Parmar’s complaint was the instigation of the disciplinary investigation (see paragraph 73, above). It is clear from the ET’s judgment as a whole that it considered that the decisions to invite Mrs Parmar to the first two of three disciplinary investigation meetings amounted to less favourable treatment and that that treatment was because of her race, because it was all part of a baseless investigation. To break down each aspect of her complaint on an appeal on a point of law and then criticise the ET for alleged missteps in relation to each item is another example of a ‘pernickety approach’. But in any event, the ET was entitled to treat the invitation to the second meeting as Ms Lake’s decision, because Ms Lake had decided to have a second meeting with Mrs Parmar. The only reason that the second meeting was conducted by Ms Tote was because, by then, Mr Samuels had replaced Ms Lake with Ms Tote.

Like the EAT, I would dismiss ground 4.

Postscript

I nevertheless consider that there are two passages in the ET’s judgment which are potentially problematic, if they are read in isolation. Neither was identified by the Council in its grounds of appeal or in its skeleton argument.

The first and potentially more serious is the passage in paragraph 76 which I quoted in paragraph 47, above). That passage, read on its own, might suggest that the ET reached a conclusion that Ms Lake had discriminated against Mrs Parmar at the first of the two necessary stages of the analysis, without asking itself whether Mrs Parmar had proved facts from which an inference of discrimination might properly be drawn, and without asking whether the Council had proved that the reason for Mrs Parmar’s treatment had nothing whatsoever to do with her race. To be fair to Mr Allen, he did refer to this paragraph in his oral submissions, but said that it was not ‘an appeal point’.

The second is the italicised part of paragraph 69 (see paragraph 40, above), which might suggest that the ET did not appreciate that the question for it was whether an inference of discrimination ‘could properly’ be drawn, rather than ‘might be drawn’ (see paragraph 56 of the judgment of Mummery LJ in Madarassy).

The fact that neither of these passages was relied on by the Council as a ground of appeal suggests to me that, realistically, the Council recognised that, despite these apparent imperfections of expression, the ET did not in substance err in law in the ways in which a non-contextual reading of these passages might otherwise suggest. There are at least three reasons why.

First (in relation to paragraph 76), the apparent vice of this paragraph is that it is in the wrong place. But the process of writing a judgment is an iterative one, and if the necessary reasoning is in the judgment, it is pedantic to detect an error of law merely because the structure of the judgment is not perfect. Moreover, the ET had expressly recognised that it was necessary to take an approach with two stages (in paragraphs 57, 65 and 69: see paragraphs 36, 37 and 38, above).

Second (in relation to paragraph 69), there are several correct directions about inferences in many other paragraphs of the ET’s judgment (for example, paragraphs 62(1), (5), (8) and 63), which show that the use of ‘might’ in paragraph 69 is a mere slip.

Third, to criticise these passages in isolation and to treat them as evidence of errors of law would be to rely on the ‘pernickety’ approach to reading ET judgments which has been so deprecated in the many authorities to which the Judge referred in his judgment. For that reason, I say no more about either of those passages.