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

Lady Justice Elisabeth Laing:

Introduction

The Appellant (‘the Council’) is a local authority. The Respondent (‘Mrs Parmar’) is a former employee of the Council. She was dismissed on 26 April 2022. While she was still employed, she brought a discrimination claim against the Council in the Employment Tribunal (‘the ET’). Her claim succeeded. The Council then appealed to the Employment Appeal Tribunal (‘the EAT’). The EAT dismissed the Council’s appeal. The Council now appeals to this court, with the permission of Bean LJ. Appeals from the ET to the EAT and from the EAT to this court are on a point of law only. The ET heard the evidence and found the facts, so the primary focus of this appeal is the question whether the ET erred in law.

On this appeal the Council was represented by Mr Allen KC and Mr Livingston. Mr Panesar KC and Ms Crawshay-Williams represented Mrs Parmar. The same counsel represented the parties in the EAT. The same junior counsel represented the parties in the ET. I thank counsel for their written and oral submissions.

In this judgment I will summarise the proceedings in the EAT, including the ET’s judgment, and, more briefly, the proceedings in the EAT. I will then summarise the grounds of appeal and the submissions. I will then explain why the Council’s arguments do not show that the ET (or, for that matter, the EAT) erred in law in their decisions in this case. I would therefore dismiss this appeal.

The proceedings in the ET

Mrs Parmar’s claim

On 7 May 2021, Mrs Parmar presented a claim form (‘ET1’) to the ET. In paragraph 2 of the particulars of claim, Mrs Parmar alleged that Ms Lake’s agenda was to protect her employment and that of ‘her white colleagues/friends. She has also shown a clear racially motivated pattern of discriminatory behaviour towards BAME staff…Examples include more BAME managers in Ruth Lake’s division being disciplined as opposed to white managers even where serious concerns have been raised against these white managers and/or behaviours which are contrary to [the Council’s] code of conduct. For example, between 2015 and 2021, three BAME senior managers in Ruth Lake’s division have been taken through a disciplinary process, in the same period no white senior manager has been disciplined. This shows a disproportionately higher number of BAME senior managers being disciplined in comparison to the total number of BAME managers in Ruth Lake’s division which averages (over the last three years) at 38%’.

Mrs Parmar’s claim was that the Council had discriminated against her on the grounds of her race. In paragraph 8 of the particulars of claim she complained that Ms Lake had not taken ‘any steps to investigate the legal Safeguarding failures by [AE] and [HM], both white Heads of Service…even though the evidence was copied to [Ms] Lake in an email on 7^th January 2021…’

In paragraph 13 of her particulars of her claim, she listed five acts by which, she said, the Council had unlawfully discriminated against her because of her race. She added that she believed that two white heads of service, AE and HM, ‘were and would not have been treated’ in the same way by the Council.

The Council made false allegations against Mrs Parmar on or around 12 January 2012.

The Council transferred her from her role as Head of Service.

The Council started a disciplinary investigation against her on or around that date.

The Council required her to go to several disciplinary investigation meetings only to tell her that there was no case to answer.

The Council did not consider lesser and more proportionate ways of dealing with the allegations against her, such as mediation.

In its response, or ET3, the Council rejected Mrs Parmar’s claim. It said, among other things, that in 2015, a head of service in Ms Lake’s division had been disciplined for ‘their’ conduct during a redundancy process, and had ‘fully accepted their wrongdoing from the outset of the investigation’. That person still works for the Council and that person and Ms Lake have a good relationship. Ms Lake could not identify which other staff Mrs Parmar was referring to in paragraph 2 of her ET1. A team manager was disciplined in 2018, but the process was not instigated by Ms Lake. The race of these managers had ‘nothing whatsoever to do with the decision to discipline them’. In paragraph 16, the Council denied that it had taken no steps to investigate the conduct of HM and AE. It asserted that Ms Lake took such steps, but ‘just not in the way [Mrs Parmar] wanted then to be addressed, as [Mrs Parmar] wanted a disciplinary process to be instigated against [AE] and [HM]’.

The judgment of the ET

The hearing in the ET took five days between 23 and 27 January 2023. The ET consisted of an Employment Judge and two lay members. The ET had the benefit of 14 pages of very detailed closing submissions from junior counsel for the Council. They were 80 paragraphs long and typed in a small font. I will return to those submissions later on in this judgment, at paragraphs 71-77, below. The ET’s judgment was sent to the parties on 22 March 2023. The ET heard evidence from Mrs Parmar, and three witnesses from the Council (Ms Lake, Ms Tote and Mr Samuels). Its unanimous decision was that the Council had discriminated against Mrs Parmar ‘by reason of her race’. The ET adjourned the issue of remedy.

The ET’s reasons

In paragraph 6 of its reasons, the ET listed the acronyms by which it referred to the Council’s various employees. The ET described the relevant ‘internal hierarchy’ in paragraphs 7 and 8. The elected City Mayor was the Council’s leader. Below him was the Council’s chief operating officer. There were several ‘strategic directors’ below her, including Mr Samuels, the director of adult social care and safeguarding. Ms Lake, who was director of adult social care and safeguarding, reported to Mr Samuels. Ms Tote was director of children and social care and community safety. Ms Lake was responsible for eight service areas in her division. Each service area is headed by a head of service or a principal professional. Mrs Parmar was head of locality west. There is also a section called contact and response (‘C&R’) which provides a ‘community front door service’ for new inquiries about adult social care.

Mrs Parmar is a British National. She describes herself as of Indian origin. She was born in Kenya. She came to the United Kingdom in 1976 and finished her secondary schooling here. She received an MA degree in social work. She started work with the Leicester County Council (‘LCC’) in 1989. After a gap when she was studying she returned to work in the Older Persons’ Mental Health Team as a qualified social worker. When the LCC and the Council merged, her employment was transferred to the Council in 1997. She became a team manager in 1998. She was appointed head of service for locality west in 2015. The ET said that she was very experienced in social work and in management (reasons, paragraph 10). She had over 30 years of experience (paragraph 12). She was responsible for several teams. Each was managed by a team leader. The ET listed those in paragraph 11. She managed three white and two Indian team leaders, including JR. AE and HM were white British heads of service.

Until the events which were the subject of the claim, Mrs Parmar had never been the subject of disciplinary proceedings or performance measures. She was dismissed on 26 April 2022. Her dismissal was the subject of a separate claim.

It was common ground that C&R and the locality west team had a poor relationship. ‘This often extended to conflict between team leaders’(paragraph 8). Ms Lake was responsible for ensuring that the teams and heads of service co-operated.

The background to the claim was an incident in May 2018 involving HM, who was then head of C&R. Ms Lake was in an open-plan office, having a routine phone call with HM. At the end of the call, HM swore so loudly that several people heard her. Ms Lake went to see HM about this. HM accepted that she had acted inappropriately and unprofessionally. Ms Lake did nothing further.

On 16 November 2018, about ten minutes before the end of the working week, and the day before Mrs Parmar was due to take two weeks’ annual leave, HM sent an email to several recipients. She raised some issues about staffing. The ET observed, somewhat tartly, that ‘The email could conceivably have been sent earlier’(paragraph 15). HM felt that her team could not cope and that some of their work should be transferred, in particular, to locality west. The ET said that she did not have the power to do this, but she nevertheless signed off with the sentence ‘I am sorry for the inconvenience, but we will have to direct callers to the West Locality from Tuesday’ (paragraph 15).

The ET said, with perhaps some understatement, ‘Unsurprisingly the email did not go down well with the recipients’(paragraph 16). One response was that HM’s suggestion was ‘completely unfeasible’(paragraph 16). In paragraph 16, the ET added a quotation from a recipient who wrote in ‘more trenchant terms’. The author of that email said that proposal would put service users at risk, and asked HM not to issue any more ‘command/demand or confrontational emails’ and to respect her professional colleagues. Mrs Parmar saw the email exchange on 24 November 2018. Her response was to send an email of complaint to Ms Lake. She said that she was not happy having to write an email while she was on a two-week holiday. She found it appalling that HM ‘took the opportunity of me being away for two weeks to harass and bully my TLs. This has now become a bit of a pattern as you will remember from earlier this year when I was on leave. The tone of [HM’s] email was totally unacceptable and I need her to afford the same respect as I do to her TLs’(paragraph 17).

On 5 December 2018, Ms Lake told Mrs Parmar that the extra work would move to locality west. Ms Lake had decided not to take any action against HM for the way in which she had first raised this issue. On 8 January 2019, Mrs Parmar had a routine supervision meeting with Ms Lake. Mrs Parmar said she had been concerned about the tone of HM’s emails. She said that it was not acceptable for a head of service to ‘kick’ the locality west team leaders. She then accused Ms Lake of unconscious bias against black and ethnic minority heads of service. She said that when Ms Lake came to the office where the heads of service were based, she always sat with her white colleagues. Ms Lake then asked if she was being accused of being a racist. Mrs Parmar said that Ms Lake would have to reflect about that, but that that was how she felt.

Ms Lake decided to speak to the team leaders to try to mend fences. She found out that many of the locality west team leaders were already in the process of lodging a collective grievance against HM. When lodged, the grievance complained, among other things, about the ‘oppressive and inequitable treatment’ to which they felt they had been subjected.

On 14 February 2020, JR was on a training course led by a principal social worker, JD. JR felt that JD had humiliated her by publicly singling her out from a group of people. She emailed JD and complained. JD’s response was to complain to Ms Lake about ‘the content and tone’ of JR’s email (paragraph 22). Ms Lake decided that mediation between JD and JR was the best way of dealing with this exchange (paragraphs 21-23).

In October 2020, SR, an agency worker with the Council, had a difficult supervision session with his line manager, who was concerned that SR had left a vulnerable service user in an unsafe situation. The service user had later died. The police asked for a report on the team’s contact with the service user. SR saw an email about the service user when he was off sick. He then ended his agency assignment with the Council. The employment agency then contacted Mrs Parmar, and told her that SR had complained about his line manager. SR and his line manager, AE, were, according to Mrs Parmar, good friends. In November AE went to SR’s home to pick up SR’s badge, laptop and locker key, which a line manager would not normally do. Then, in November 2020, SR apparently re-joined the Council as an agency worker, with AE as his line manager. Some people were still concerned about the quality of his work.

Another incident related to SCC, who is white British and was, at the relevant time, acting head of service. Mrs Parmar was allocated to her as her buddy/mentor. On 13 December 2020, M SCC emailed Ms Lake to say that she no longer wanted Mrs Parmar as her mentor and that she had concerns about locality west. Ms Lake asked M SCC to put her concerns in writing. She did so. The ET said of those concerns: ‘These were it has to be said all at fairly low level’(paragraph 26). The ET further described them in paragraph 26. The ET’s assessment of their gravity was one which was open to the ET.

On 16 December 2020 AE wrote to Ms Lake, raising concerns about the working relationship between C&R and locality west. This was not a complaint about Mrs Parmar, but about some things for which she was responsible (paragraph 27). On 20 December 2020, Ms Lake contacted a manager in the HR team to discuss her concerns about Mrs Parmar. Ms Joseph from HR was allocated to support Ms Lake.

There was an ‘angry’ exchange of emails on 4 January 2021 between JR (one of Mrs Parmar’s team leaders) SR and AE about a case in which there had been safeguarding alerts on which, apparently, no action had been taken. The ET described the exchange in more detail in paragraph 29. AE emailed Mrs Parmar the next day because she was JR’s line manager, complaining about JR’s ‘accusatory’ emails and saying that it would lead to a formal complaint if it continued.

Mrs Parmar was copied in because she was head of service; she only saw the exchange on her return from annual leave on 5 January 2021. Mrs Parmar’s view was that there was a difference of opinion about the point at which alerts should have been entered in the relevant system. She asked a principal social worker for advice. AE emailed Ms Lake on 7 January 2021. AE accused Mrs Parmar and locality west of having ‘escalated matters beyond all reason’(paragraph 31), and of targeting SR and herself by association. Locality west had ‘a long reputation of intimidating and unhelpful behaviour’(paragraph 31) and she could not understand whether they were allowed to behave in that way.

Mrs Parmar sent AE an email about SR’s supervision on 8 January 2021. AE emailed Ms Lake shortly after that. She did not copy in Mrs Parmar. She said ‘I am absolutely disgusted with what [Mrs Parmar] is implying here. I will be raising this through the appropriate channels and will be making a formal complaint as this is victimisation’(paragraph 33). She would ask HR for advice. On the same day AE ‘resigned’, but did not leave. She sent another email to Ms Lake. She accused team leaders and heads of service of being ‘vindictive and unprofessional’ and gave Mrs Parmar as an example. She said that SR intended to leave ‘as a result of this victimisation’(paragraph 34).

Ms Lake said that she had a meeting with a person from HR in early January 2021 and they agreed that a disciplinary investigation was appropriate. She also decided temporarily to transfer Mrs Parmar from her post. She told Mr Samuels. As the ET noted in paragraph 35, ‘No such decision was made to suspendany other Head of Service’. Ms Lake told Mrs Parmar of this on 12 January 2021, and told the other heads of service. Ms Lake then interviewed nine witnesses. They did not include SR.

On 9 February 2021, Ms Lake invited Mrs Parmar to a disciplinary investigation meeting. The ET quoted the allegations in paragraph 39. Two general failures were alleged against her; but no details were given, such as dates, conduct, people, or the provisions or standards which she was said to have breached. These matters were said to have ‘created an environment that is detrimental to individuals and to the delivery of core functions…’ On 19 February 2021, Ms Lake had a remote investigation meeting with Mrs Parmar. It was recorded. The meeting did not finish. A further meeting was arranged for 24 February 2021.

On 22 February 2021, Mrs Parmar sent an email entitled ‘whistleblowing’ to 60 people in the Council, including the City Mayor and all the councillors. She copied in the Care Quality Commission. She made a number of ‘allegations of whistleblowing and racially discriminatory behaviour against BAME staff by Ms Lake’(paragraph 41). That email was the subject of separate proceedings, so the ET said no more about it.

Mrs Parmar was absent with work-related stress from 23 February 2021 until 25 March 2021. The second investigation meeting was cancelled. At some point Mr Samuels decided that another director, Ms Tote, should take over the investigation. She was given recordings of the remote interviews and watched them. They were not given to Mrs Parmar. The ET commented, correctly, in paragraph 44, that ‘None of the recorded interviews have been supplied to [Mrs Parmar] in the process of disclosure nor have the transcripts been included in the otherwise voluminous bundle of 680 pages. The reason given is that they were deemed not relevant’.

SR was not interviewed by Ms Lake, but Ms Tote did want to speak to him, and she wrote to him to ask him for an interview. He had left his job by then, and was recovering from an illness. No statement was taken from him. On 23 March 2021 Ms Tote interviewed OC, an agency worker, about his interactions with Mrs Parmar, which he had raised with an agency. Ms Tote invited Mrs Parmar to a further investigation interview on 26 March, the day after her return to work.

The Council instructed an outside expert to look into the allegations which Mrs Parmar had made. ‘It appears that his decision was based on the papers only’. He concluded, in a report dated 31 March 2021, that there was no credible evidence to support Mrs Parmar’s allegations of safeguarding failures or of race discrimination (paragraph 48).

The re-arranged investigation meeting between Mrs Parmar and Ms Tote was on 22 April 2021. It was a remote meeting. The notes of that meeting were disclosed in the ET proceedings. Mrs Parmar said that she did not understand, and had never understood, what she had done wrong. The ET quoted what she said in paragraph 49. She said that she had, by then, been interviewed for three hours and still did not know what specific provision she was alleged to have breached. ‘There is no substantive reply from Ms Tote to that question. We note that at this point Ms Tote had listened to all the earlier recordings of interviews’ (paragraph 50).

Ms Tote arranged a further meeting on 7 May 2021, ‘which although described as a “re-convened investigation meeting” was to all intents and purposes arranged to inform [Mrs Parmar] that there was no case to answer and the process was being brought to an end’ (paragraph 51). On 7 May 2021, that is, on the very same day, Mrs Parmar presented an ET1 to the ET.

In paragraph 53, the ET referred to a data subject access request (‘DSAR’) which Mrs Parmar had made before the ET hearing. The Council’s answer to the DSAR was that it did not hold information on the number of white and BAME employees from grade 10 and above in adult social care who had been the subject of disciplinary action started before 2017. There had been two such cases since 2017. Both were against BAME employees. There was no record of any comparable white employees being disciplined.

That answer was supplemented by evidence at the hearing. The only other head of service who was subject to disciplinary action was JSB who was of Asian origin. The only other person who was in a comparable grade to Mrs Parmar who was the subject of a disciplinary investigation commissioned by Ms Lake was KR, who is of Asian origin. Ms Lake had not commissioned any disciplinary investigations against white employees of a comparable status (paragraph 54).

The ET listed the agreed issues in paragraphs 55-57. The particulars of the treatment of which Mrs Parmar complained correspond with the allegations in Mrs Parmar’s ET1 (see paragraph 4, above). The issue in relation to each was whether the Council had treated Mrs Parmar less favourably than it treated or would treat a comparator. The ET recorded, correctly, that Mrs Parmar relied on a hypothetical comparator.

The final issue was whether Mrs Parmar could ‘prove primary facts from which [the ET] could properly conclude, in the absence of any other explanation, that the difference in treatment was because of [Mrs Parmar’s] race… If so, what is [the Council’s] explanation? Can it prove a non-discriminatory reason for any proven treatment?’ (paragraph 57).

In paragraphs 58-63 the ET summarised the law. Mr Allen was asked during his oral submissions whether he criticised that summary. He said that he did not. The ET recorded in paragraph 64 that there was no dispute about the law and no significant dispute about the material facts. The dispute was about how the law should be applied. In paragraph 65, it said that there was no suggestion that this case was so straightforward that it was not necessary for the ET to go through ‘the two-stage process’.

The ET did not think much of the Council’s argument that an allegation of direct discrimination had only been put to Ms Lake at the end of her cross-examination, ‘as almost an after-thought’. Nor was it impressed by the argument that Mrs Parmar had not ‘provided evidence of discrimination. There is rarely direct evidence of discrimination’ (paragraphs 66 and 67).

In paragraph 68, the ET said that there could be ‘no real argument that [Mrs Parmar] was subject to treatment which could potentially amount to less favourable treatment’. A disciplinary investigation and suspension from her role ‘are clearly potential acts of less favourable treatment’. The real dispute in the case was about ‘appropriate comparison, whether the burden of proof passes to [the Council] to show a non-discriminatory reason for the treatment and if so whether that burden has been discharged’ (paragraph 68).

The ET, ‘having considered the evidence’ was ‘satisfied’ that Mrs Parmar had ‘established a prima facie case, that is to say [Mrs Parmar] has proved facts from which an inference of discrimination could be drawn and thus facts from which an inference of discrimination might be drawn and the burden thus shifts to [the Council] to establish a non-discriminatory reason for the treatment’ (paragraph 69) (my emphasis).

The ET’s summary was ‘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 [Mrs Parmar]. Instead her normal approach was to offer mediation or deal with it informally by discussion. In the case of Mrs Parmar, however, she decided to take much more drastic action and she did so after she had been accused of unconscious racial bias’ (paragraph 70) (my emphasis).

The ET then explained, in paragraphs 70-78, the things which ‘in particular’ it had taken into account.

HM had admitted swearing. That was inappropriate conduct. Ms Lake thought so, as she had taken the time to go and see HM personally.

HM had sent an email which caused such consternation that it led to a collective grievance. Ms Lake agreed the outcome about the distribution of work, ‘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 [Mrs Parmar].’

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

AE’s claim that Mrs Parmar had victimised SR was a central allegation by AE against Mrs Parmar, yet Ms Lake did not interview SR, ‘which suggests she could not have thought that there was any substance in the allegation’. The ET did not think that the explanation for this was that Ms Lake ‘had simply not got round to it’, as she had done all of the nine proposed interviews by 5 February 2001. SR was never on the list of interviewees. Mrs Parmar was interviewed after the others, which suggested that Mrs Parmar was the last of the list of planned interviewees. It would make ‘no sense’ to interview SR after Mrs Parmar.

The issue involving AE and the matter which HM thought was ‘escalated beyond all reason’ was about JR, not Mrs Parmar. Mrs Parmar was right to ask JD for advice.

The only employees Ms Lake had ever disciplined were ‘of Asian ethnicity’.

The ET recorded, in paragraph 71, counsel’s argument that the allegations against Mrs Parmar were serious and that an investigation was appropriate. He argued that it was irrelevant that nothing had come of the investigation, because that conclusion could only be reached after the investigation. He relied on Mrs Parmar’s concession in cross-examination that they were ‘serious concerns’ and ‘serious allegation’. Mrs Parmar’s actual concession, the ET explained, was that the allegations were serious if correct, but she did not believe that they were.

Mrs Parmar ‘clearly’ did not accept that they were serious at the time because she consistently complained that they were without substance, and she did not understand what she was supposed to have done wrong. Ms Lake never told Mrs Parmar about the allegations by AE and by SCC. Mrs Parmar only found out about them during disclosure. ‘She was therefore hardly in a position to admit they were serious if she did not know anything about them’(paragraph 73).

The ET’s summary, in paragraph 74, was that ‘The reality is that there was nothing of substance to start a disciplinary investigation’. Nor was there any suggestion that senior managers ‘routinely’ started such investigations. Ms Lake must have known that there was ‘nothing of substance because the wording of the allegations …did not set out any identifiable acts of misconduct’. That is a significant finding of fact. Ms Tote ‘decided quite properly’ to discontinue the investigation once she had considered the evidence. ‘There is nothing to suggest Ms Lake would have discontinued the investigation if she had not been removed from the process by Mr Samuels’ (paragraph 74).

AE’s email of 16 December did not raise any concerns about Mrs Parmar. The two specific complaints were about the conduct of a particular employee who was not Mrs Parmar.

The ET’s conclusion on the evidence was that ‘when it came to assessing the merits of …allegations against white employees such as HM, AE and JR, Ms Lake was slow to move to formal measures. In the case of [Mrs Parmar] 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’ (paragraph 76).

The ET ‘also’ drew adverse inferences from the Council’s failure to disclose relevant evidence. There had been a conscious decision by the Council or by its legal team not to disclose ‘highly relevant evidence’. This evidence was ‘clearly relevant’ because it was the evidence which led Ms Tote to decide that there was no substance in the allegations and therefore to end the investigation (paragraph 77). This evidence was not just the recordings of the interviews. Ms Lake had said that she made notes of witness interviews which she ‘may have shared’ with HR. She might have typed them and saved them in a file. No notes or files had been disclosed. Ms Tote took notes from investigation meetings which she kept for six months. As Mrs Parmar presented her claim on 7 May, ‘the need to preserve such notes would have been obvious from the outset’. Ms Tote also interviewed OC ‘and at least some interviews were recorded. Those recordings have not been disclosed’ (paragraph 78).

In paragraph 79 the ET considered whether the Council had shown that there was a non-discriminatory explanation for what had happened. The ET considered and rejected seven explanations.

The disciplinary procedure was appropriate to speak to witnesses and to gather evidence. That argument was ‘without substance’. There was nothing to stop Ms Lake from making ‘informal inquiries as she often did’.

Ms Lake took advice from HR and was told that the investigation was appropriate. The ET said that she could not hide behind HR’s actions or advice. The investigation was her management decision.

The disciplinary procedure was preferable to the grievance procedure which relied on complainants to raise grievances. The ET observed that this explanation was new, and had no merit. ‘It is somewhat bizarre to suggest that because no-one had lodged a grievance that this somehow made a disciplinary process appropriate’.

Ms Lake had raised issues with Mrs Parmar in the past to no avail. The ET’s comment was that this explanation appeared to have been developed ‘in the course of Ms Lake’s evidence’. In cross-examination she could only give three examples ‘where [Mrs Parmar] had failed to acknowledge past issues’.

She had asked Mrs Parmar in October 2020 not to use a ‘curt and dismissive’ tone in emails; but the relevant email was not in the bundle, so the ET could not ‘assess it fully’. The ET further commented that the email could not have been thought to be important, because it would otherwise have been in the bundle of documents. Mrs Parmar had in any event said she was happy to discuss this at her next one-to-one meeting; and Ms Lake had conceded that they might not ‘see eye to eye on the tone thing’. The question had not then been discussed at their next meeting.

Ms Lake had told Mrs Parmar at a meeting on 8 January that she had seen emails from locality west managers, including Mrs Parmar, which Ms Lake thought were ‘rude and aggressive’. The ET’s comment was ‘Those emails have not been included in the bundle either so the same observation applies’.

At a third supervision meeting on 3 March 2020, it was noted that ‘wider concerns’ had been 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…’. Those concerns were about ten months before Mrs Parmar was investigated. ‘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’.

Given the potential misconduct, an investigation was appropriate. The ET commented, succinctly, ‘There was no potential misconduct in reality. The allegations have never been particularised’. This is another significant finding of fact.

When Ms Lake got the statements and emails from SCC, AE had told SCC that he/she intended to resign. The suggestion that AE would resign ‘was clearly not serious nor do we find that Ms Lake treated it as such’. These things could not have been serious because Mrs Parmar was never told about them. This is also a significant finding of fact.

There was, it was said, potential targeting of SR and allegations of victimisation. If Ms Lake had genuinely thought that she would have interviewed SR. SR had not complained that he was being victimised. This is a further significant finding of fact.

The ET’s first conclusion, in paragraph 80, was that it was satisfied ‘in all of the circumstances that [the Council] has not established, on the balance of probabilities, a non-discriminatory explanation for the treatment of’ Mrs Parmar. Its second conclusion, in paragraph 81, was that it was ‘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’. The ET was satisfied that the Council had treated Mrs Parmar ‘less favourably because of her race’.

The ET listed its conclusions on the specific issues in paragraphs 82-88.

The ET dismissed the claim (‘as framed’) that false allegations had been made against Mrs Parmar on or around 12 January 2021. The allegations were not ‘false’ in the sense that they were ‘manufactured or fabricated’.

The ET upheld Mrs Parmar’s claim on issues 2 and 3 (transferring Mrs Parmar from her role and carrying out a disciplinary investigation). It was ‘satisfied that [Mrs Parmar] 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 would have been for the reasons given above’.

Issue 4 concerned the disciplinary procedure investigatory meetings by Ms Lake on 19 February 2021 and by Ms Tote on 22 April and 7 May 2021. The ET upheld the first two allegations ‘for the reasons given above’. Although Ms Tote held the second meeting and no allegations were made against her, the real decision was made by Ms Lake (the meeting had been postponed when Mrs Parmar became ill). The second meeting was effectively a continuation of the first. The ET did not uphold the allegation about the third meeting, as all that happened was that Ms Tote told Mrs Parmar that the investigation had been dropped. Mrs Parmar might have been told sooner, but ‘there is nothing discriminatory about that’. In any event it was not a disciplinary investigation meeting.

The fifth allegation succeeded ‘for the reasons given above’.