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

The appeal to the EAT

The Council appealed to the EAT on 11 grounds. The parties were represented as they were in this court. The hearing lasted a day before HHJ James Tayler (‘the Judge’). The Judge summarised the relevant parts of the ET’s judgment in paragraphs 2-46, with extensive quotations where appropriate. In paragraph 47 of the EAT’s judgment, the Judge described the ground of appeal as including many ‘perversity and reasons challenges’. He then quoted paragraph 3.8.1 of the EAT’s Practice Direction: ‘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 Judge cited four decisions of this court which emphasise the EAT’s limited powers on an appeal on a point of law, and the dangers, when an appellate court disagrees with a decision, of substituting its subjective preference for the conclusions of the fact-finder, and of being too ready to detect errors of law by being ‘pernickety’ or over-analysing the ET’s reasoning in a ‘hypercritical’ way. The authorities also encourage appellate courts to read the decisions of ET ‘fairly and as a whole, without focussing merely on individual phrases or passages in isolation…’. Those four decisions, in chronological order, are UCATT v Brain [1981] ICR 542; British Telecommunications Plc v Sheridan [1990] IRLR 27; Brent London Borough Council v Fuller [2011] EWCA Civ 267; [2011] ICR 806; and DPP Law Limited v Greenberg [2021] EWCA Civ 672; [2021] IRLR 1016. The Judge also cited a summary of authorities about the ET’s duty to give reasons given by Cavanagh J in Frame v Governing Body of Llanwgiwg Primary School UKEAT/0320/19/EAT.

The Judge commented in paragraph 55 that many grounds of appeal ‘inevitably with a myriad of sub-grounds, are an invitation not to see the wood for the trees’. He stood back for a moment and looked at the wood. ‘The primary reason for the burden of proof shifting to [the Council] was the disparity finding; that Ms Lake had not disciplined employees of other ethnicity than that of [Mrs Parmar] in similar circumstances. That was linked to the unfairness finding; the [Mrs Parmar] had been treated unfairly while those of a different race with who she compared her treatment had not; and the treatment of Asian employees finding: that the comparable employees Ms Lake had previously subject to disciplinary action were Asian. A further minor factor was the disclosure finding… The burden having shifted to [the Council] the explanations were rejected as proving that discrimination had not occurred. On the face of it, this was a paradigm application of the principles in Igen, although [the Council] would have us believe otherwise’ (paragraph 55). ‘Igen’ is a reference to Igen Limited v Wong [2005] EWCA Civ 142; [2005] ICR 931.

The Judge then considered, and dismissed, all 11 grounds of appeal. I will refer in due course to the Judge’s reasons for dismissing the grounds of appeal which have been resuscitated for the purposes of this appeal (that is, EAT grounds 4, 7, 8-9, and 11). I will start, however, with the Judge’s discussion of comparators, as it is useful background to the Council’s arguments on ground 1.

In his consideration of the earlier grounds of appeal, the Judge had cited the relevant authorities on the difference between a ‘statutory comparator’, a ‘hypothetical comparator’ and an ‘evidential comparator’. He referred to the judgment of Cavanagh J in Martin v St Francis Xavier Sixth Form College Board [2024] EAT 22; [2024] IRLR 472. In paragraph 54 of his judgment, Cavanagh J summarised the effect of section 13 of the Equality Act 2010 (‘the 2010 Act’) (see paragraph 85, below). There are two elements in section 13. First, a claimant must show that less favourable treatment. Second, the claimant must show (in a case like this) that that treatment was because of his race.

In paragraph 55, Cavanagh J said that there are three possible comparators for this purpose: an actual, a hypothetical, and an ‘evidential’ comparator. He explained that there is an actual comparator when ‘there are no material differences between the circumstances relating to the claimant’s case and the comparator’s case’ (see section 23(1) of the 2010 Act). An actual comparator is also sometimes called ‘a statutory comparator’. Cavanagh J then pointed out that even if there were material differences between the circumstances of the claimant and of another person, an ET can take into account the way in which a respondent treats that person, if there are relevant similarities between the claimant’s circumstances and those of that person. He referred to Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 (EAT: Lindsay J) as an example of such a case.

He also quoted paragraphs 107-110 of the speech of Lord Scott in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337. Lord Scott explained in paragraph 107 that comparators come ‘into play in two distinct and separate respects’. The first class of comparator is the statutory comparator, actual or hypothetical. In most cases there will not be a suitable actual comparator, and a claimant will have to rely on a hypothetical comparator (paragraph 108).

Comparators also have a ‘quite separate evidential role to play’, however. A claimant can satisfy a tribunal that she has been discriminated against by ‘placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class’. Actual comparators can constitute such evidential material. They are ‘no more than tools which may or may not justify an inference of discrimination… The usefulness of the tool will, in any particular case, depend on the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences, the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator…by no means disqualifies it from an evidential role. It may, in conjunction with other material, justify the tribunal in drawing the inference that that victim was treated less favourably than she would have been treated if she had been the …comparator’ (paragraph 109).

Cavanagh J also quoted paragraph 37 of Lord Hoffmann’s leading speech in Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 296. Lord Hoffmann explained that whether or not there is a sufficient material similarity between the circumstances of a claimant and an actual comparator may sometimes be disputed, but that it may be unnecessary to resolve such disputes because the ET ‘should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator’.

In paragraph 66, the Judge said that he had quoted extensively from the authorities ‘to emphasise that comparing the treatment of a claimant with that of another person is a subtle business’. The analysis is ‘highly context specific. Where such a comparison is made, as part of an analysis of a range of relevant factors it is not valid to pick apart small components of the comparative analysis, and to trot out the well-known phrase that there is nothing more than a mere difference of status and treatment, while ignoring all of the other relevant findings of the [ET] that contributed to the overall analysis’ (paragraph 66).

He rejected the criticism that this case was only about ‘unfair treatment’ (paragraphs 67-71). He explained cogently in paragraph 73 why there was more than a ‘mere difference of treatment and status’. A number of white employees had not been the subject of a disciplinary procedure in circumstances which were similar to those of Mrs Parmar. ‘It was the totality of the evidence which shifted the burden of proof’.

He referred, in paragraphs 76 and 77, to criticisms of ‘just one component of a multi-faceted decision’ and of ‘one minor component in the overall analysis’. He commented wryly, on ground 3 (a reasons challenge) that if the ET’s reasons were ‘so lacking it is hard to understand how [the Council] managed to find 11 grounds of appeal to challenge them’ (paragraph 83).

The Judge dealt with ground 4 in paragraphs 84-89. He said that ‘On a fair reading of the Judgment as a whole I consider that it is clear that [the ET] considered that there were evidential comparators who assisted in the process of drawing inferences’ (paragraph 84). He rejected the argument that if there was no actual comparator, the ET is obliged ‘expressly to construct a hypothetical comparator’ (paragraph 85). The Judge pointed that, in any event, the ET had twice (in paragraphs 81 and 84) referred to a hypothetical white employee, and that the way in which it had expressed its conclusions on issues 4 and 5 did not undermine that point (paragraphs 87-89).

In the EAT the Council relied on a statement by Underhill J (as he then was) in D’Silva v NATFHE [2008] IRLR 412 in support of ground 7. The Judge pointed out, rightly, that, in that passage, Underhill J was warning against the dangers of automatically drawing an inference of discrimination from failures to disclose documents in ET proceedings. The Judge added, rightly, that ‘That was not the case in this judgment. It was a minor factor, amongst many others, that resulted in the burden shifting. I do not consider that the [ET] erred in law in taking it into account, to the limited extent that it did so. The burden would have shifted absent this component of the analysis’ (paragraph 94).

The EAT dealt succinctly with grounds 8, 9 and 11.

Ground 8 was ‘a dressed up perversity ground’. On a ‘fair reading of the judgment’ the ET did consider whether there was a non-discriminatory explanation for the treatment of Mrs Parmar. The ET ‘found as a fact that [the Council] had failed to establish that that was the case. [The Council] comes nowhere near surmounting the high threshold for establishing perversity’ (paragraph 95).

The EAT’s answer to ground 9 was that the ET ‘clearly did consider [the Council’s] explanation for the treatment of [Mrs Parmar], but rejected it. [The ET] did not accept that the real reason for the instigation of a formal disciplinary investigation was [Mrs Parmar’s] conduct. The ET did not disregard the concerns that had been raised, but concluded that if [Mrs Parmar] had been white they would have been dealt with informally’ (paragraph 96).

Ground 11 was a challenge to the ET’s conclusion that inviting ‘Mrs Parmar to disciplinary investigatory meetings was an act of race discrimination. [The Council] comes nowhere near to establishing perversity. The reasoning of [the ET] was more than adequate to explain why the burden of proof shifted to [the Council] and why [the Council] failed to discharge the burden upon it’ (paragraph 98).

The grounds of appeal

There are four grounds of appeal.

The EAT’s conclusions about the council’s treatment of the comparators were wrong and it was therefore wrong to hold that the burden of proving discrimination shifted from Mrs Parmar to the Council (ground 4 before the EAT).

The ET was wrong to draw adverse inferences from the Council’s failures to disclose relevant documents (ground 7 before the EAT).

The ET’s approach to the Council’s non-discriminatory explanation for its treatment of Mrs Parmar was wrong (grounds 8-9 before the EAT).

The ET’s approach to the Council’s inviting Mrs Parmar to disciplinary meetings was wrong (ground 11 before the EAT).

Submissions

At the ET hearing

In his oral submissions, Mr Allen relied on some passages in the Council’s closing written submissions. Those submissions are part of the context for the judgment, as they show (1) the way in which the Council tried to persuade the ET to apply the uncontroversial law to the facts, and (2) the evidence relied on by the Council at the end of the hearing. Junior counsel reminded the ET in paragraph 3 that this was not an unfair dismissal case and that whether there were reasonable grounds for an investigation into misconduct by Mrs Parmar was not the ET’s concern. The question for the ET was whether Mrs Parmar was subject to a disciplinary investigation ‘because of her race’ (original emphasis).

He cited, among other things, paragraph 37 of the judgment of Lord Hope in Hewage v Grampian Health Board (Scotland) [2012] UKSC 37; [2012] ICR 1054; ‘It is important not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other’.

He pointed out that Mrs Parmar was not relying on an actual comparator. The issue, therefore, ‘in relation to each of [Mrs Parmar’s] claims is whether [Mrs Parmar] was treated less favourably than [the Council] would have treated a hypothetical comparator - ie someone who was White British – because of her race’. In paragraph 12, he said that the instigation of the disciplinary investigation was ‘only one of five claims’ but immediately acknowledged that ‘it appears that the crux of [Mrs Parmar’s] case is this allegation and that the others are largely subsumed within this primary complaint’.

In paragraph 14 of his submissions, he said that the Council’s primary position was that the ET was ‘in a position to make positive findings on the evidence that the reasons given by [the Council] for commencing a disciplinary investigation (as set out…below) were genuine…and therefore the ET should conclude that the burden of proof provisions have no real relevance (as per Hewage)’. In paragraph 23, he noted that HM and JD were not actual comparators. Their only possible relevance was ‘whether they provide evidence from which the ET could infer that Ms Lake commenced a disciplinary investigation into [Mrs Parmar] because of her race’. He submitted, in that context, that the ET should ‘consider events relating to [them] solely through the lens of whether they provide any evidence to support [Mrs Parmar’s] claims…rather than getting into the detail of the way in which they were treated …and seeking to compare it to the way in which [Mrs Parmar] was treated…’.

He warned the ET against making a direct comparison with HM in paragraph 24.b, because HM was not relied on as an actual comparator. He made a similar point about JD in paragraph 25.In paragraph 26.c he said that there was not enough evidence about the cases of the BAME managers who had been disciplined ‘to enable any inferences to be drawn’. He described that evidence in paragraph 26.d. He repeated that point at paragraph 39. His primary submission was the ET did not need to make findings about how Ms Lake treated HM and JD. In the alternative, he invited the ET to make detailed findings about HM and JD in paragraphs 40-43.

In paragraph 31 he submitted that the only question for the ET if the burden of proof passed to the Council was whether or not the reasons given by Ms Lake were her ‘actual reasons’.

He dealt with the Council’s decision not to disclose the recording of Ms Lake’s interviews with witnesses in paragraph 74. It appears that Mrs Parmar’s counsel had invited the ET to draw adverse inferences from this at the start of the hearing. Mr Livingston gave detailed reasons why such an inference should not be drawn, including the assertion that ‘It is inconceivable that these recordings could have contained anything which would have supported’ Mrs Parmar’s claim and that conclusion was supported by Mrs Parmar’s evidence.

At the hearing of this appeal

The focus of the Council’s skeleton argument shifted between the reasoning of the EAT, and that of the ET, rather than concentrating on the reasoning of the ET. As I have already indicated, the real question in an appeal from the EAT in a case like this is almost always whether the ET erred in law in reaching the decision which it reached, rather than whether the EAT independently or additionally erred in law. If the ET did not err in law, any errors of law by the EAT are usually irrelevant (unless, of course, the EAT has then wrongly overturned the decision of the ET).

The Council argued, under ground 1, that a key question in relation to evidential comparators is the extent of the similarities and differences between their circumstances and those of the claimant. The Council’s main complaint was that the ET ‘essentially’ treated the comparators as actual comparators and did not pay attention to the extent to which their circumstances differed from those of Mrs Parmar. The Council then expanded on the differences between the circumstances of the comparators and those of Mrs Parmar. In his oral submissions Mr Allen emphasised that the Council’s written submissions had invited the ET to consider the differences between the circumstances of HM and JD with those of Mrs Parmar. The ET had not mentioned any differences at all. An incorrect premise of the ET’s view that nothing equally serious had been alleged against Mrs Parmar was that it should consider the position at the end of the disciplinary investigation, rather than at its outset.

The Council also complained that the ET and the EAT had made a factual mistake about the identities of the employees who might reasonably have been subjected to an investigation. The ET identified HM, AE and JR, when the only people against whom allegations had been made were HM and JD (see paragraphs 70, 76 and 70.1-70.3 of the ET’s judgment).

The Council also complained that the ET made no findings about the circumstances in which the two Asian employees had been disciplined and no finding that their circumstances were comparable.

Ground 2 criticised the ET’s reasoning in paragraphs 77 and 78 (see paragraph 48, above). The Council suggested that the ET erred in law by ‘automatically’ treating a failure to disclose relevant documents as ‘raising a presumption of discrimination’. As the decision was, the Council asserts, made by its legal team, it cannot have shed light on Ms Lake’s reasoning, and the ET did not engage with the Council’s explanation for ‘the alleged disclosure failure’. It is suggested, for example, that it is ‘inexplicable’, when there was no allegation of discrimination against Ms Tote, to draw any inference from the failure to disclose the notes of the interviews she had. It also criticises the EAT for the way in which it dealt with this ground of appeal. Mr Livingston made oral submissions in support of this ground of appeal. He emphasised that Mrs Parmar had not made a formal application to the ET for disclosure. He accepted that the ET was entitled to decide that the Council’s failure to disclose the documents was unreasonable. He submitted that there was no evidence that Ms Lake had told Ms Tote to destroy documents, Ms Tote was following an internal policy, and the disclosure decision was made not by Ms Lake but by the Council’s legal department.

The Council argued under ground 3 that instead of asking itself whether the Council’s reasons for its actions were the reasons for those actions, the ET wrongly asked itself whether it agreed with the Council’s reasons for its actions. It is also said to have erred by not considering the Council’s explanations for each alleged act of discrimination when the explanations differed. It only considered the Council’s reasons for the decision to start a disciplinary investigation against Mrs Parmar. The EAT compounded those errors. In his oral submissions Mr Allen was driven to accept that some at least of the ET’s criticisms of R’s justifications suggested that the ET had taken the right approach to this part of the case, in effect by considering which of the reasons were credible. He suggested that the ET had wrongly characterised a temporary transfer from Mrs Parmar’s post as a suspension and that this somehow cast doubt on the ET’s approach.

The main complaint under ground 4 was that the ET did not ask whether the decision to ask Mrs Parmar to three disciplinary meetings was less favourable treatment because of her race. Instead, it simply upheld the allegations ‘for the reasons given above’. The EAT did not properly engage with this ground of appeal. The ET simply did not explain why the burden of proof shifted in relation to this allegation. One of the criticisms of the ET is that one of three disciplinary meetings was not held by Ms Lake, but by Ms Tote, who was not accused of discrimination. The ET is also criticised for supposedly concluding that ‘Ms Tote’s decision was actually a decision by Ms Lake…, however that decision was perverse. The EAT failed to engage with this argument’. The ET is also criticised for not examining the Council’s non-discriminatory explanations for its conduct. In his oral submissions, Mr Allen suggested that inviting Mrs Parmar to investigation meetings could not be less favourable treatment because it is everyone’s right in a disciplinary procedure to give an account of him or herself.