Legal Briefing: successful race discrimination claim

The law surrounding discrimination claims operates using a two-stage test, which must be satisfied to prove that discrimination has taken place.   

The two-stage test is divided up into the burden on the claimant and the burden on the employer. Firstly, the claimant must show that their employer treated them less favourably than a comparator and that the difference in treatment is attributable to the claimant’s protected characteristic. In this case, Mrs Bindu Parmar needed to show that the difference in treatment was attributable to her race.  

The comparator used by the claimant can be either real or hypothetical, as it is often difficult to identify a real comparator within the employer’s workplace who does not have the protected characteristic and has been treated more favourably. In this case, the claimant used a hypothetical comparator but also referred to other similar or more serious situations that had occurred in the council where white colleagues had not been subject to disciplinary proceedings as a result of their actions and had therefore been treated more favourably by their employer. The claimant used this to bolster her evidence that the disciplinary investigation was due to discrimination based on race.  

Once the claimant has shown that they have been treated less favourably, the second stage of the test for discrimination is where the burden of proving the case shifts; the employer then has the burden of proving to the tribunal that there was a non-discriminatory reason for the difference in treatment of the claimant and their comparator.  

Background 

Bindu had been employed by Leicester City Council since 1989 and became a qualified social worker in 1994, dedicating over 30 years to social work within the council. Bindu was appointed to a team manager role in 1998; following this achievement she was quickly promoted to a service manager role in 2002, where she managed multiple teams. She was then promoted to head of service for Locality West in 2015.  

During her long service in the council, Bindu had never been subject to disciplinary proceedings and was never reported for performance issues. However, following a number of incidents, including a disagreement between Bindu’s team and another team, Bindu found herself subject to disciplinary proceedings; these were vague in nature, despite Bindu requesting clarification about what she had done wrong.  

These disciplinary proceedings were the subject of the race discrimination claim that UNISON’s region and legal services supported her in bringing against Leicester City Council.  

Bindu was told on 12 January 2021 that she was going to be transferred from her role while a disciplinary investigation took place, and an email was sent to all other heads of service to inform them of this. She was then subject to three disciplinary meetings over the course of several months. Throughout this process Bindu remained in the dark as to what she had done wrong and what she was being accused of, as her employer did not explain which code of conduct or professional standard she had failed, or which action had led to this investigation.  

On 7 May 2021, nearly five months after the disciplinary investigation began, Bindu attended her third investigation meeting and was told that there was no case to answer. Bindu lodged her claim to the tribunal on the same day.  

Employment Tribunal 

The Employment Tribunal upheld Bindu’s claim of race discrimination. It agreed that Bindu had proved that she was treated less favourably than a hypothetical white comparator when she was subject to a baseless disciplinary investigation and that the reason for this less favourable treatment was due to her race.  

The tribunal also made findings linked to the conduct of the investigation. Throughout the disciplinary investigation, several of Bindu’s colleagues had also been interviewed. The council refused to disclose the recordings or transcripts from those interviews, despite their relevance to Bindu’s claims. The tribunal made adverse inferences against the council because of its withholding this information.  

Employment Appeal Tribunal  

The employer appealed this decision to the Employment Appeal Tribunal (EAT) citing 11 grounds of appeal. These included a ground that the Employment Tribunal had not correctly applied the test to switch the burden from the claimant to the employer for each complaint that the claimant had made. It also argued the tribunal had incorrectly applied the law in relation to comparators and that the tribunal had incorrectly made adverse inferences in relation to disclosure of documents. UNISON supported Bindu in fighting against this appeal and was again successful at this stage. The EAT agreed with the decision made at the Employment Tribunal and dismissed the appeal.  

Court of Appeal  

Despite the successful rulings of both the Employment Tribunal and Employment Appeal Tribunal, which confirmed Bindu’s claim that she had been racially discriminated against by her employer, Leicester City Council used further public funds to appeal to the Court of Appeal.  

The Court of Appeal considered the employer’s appeal during a one-day hearing on 10 July. It handed down its judgment on 22 July, dismissing the appeal.  

The Court of Appeal’s judgment was a helpful reminder of how the two-stage test operates within discrimination cases. The Court of Appeal discussed the correct approach when dealing with different types of comparators. The court made a clear distinction between the statutory comparator, which a claimant must present (this can be real or hypothetical) and the evidential comparator, which can be used by the claimant to support their arguments even if the factual background of these comparators is slightly different to the facts of the claimant’s case. Using this rationale, the Court of Appeal agreed with the approach taken by the Employment Tribunal when it considered examples of how Bindu’s white colleagues had been treated in the past, where their behaviour had arguably been more reprehensible or their job role was slightly different, as these were evidential comparators there to assist the court in making a decision.  

The employer argued that it was wrong that adverse inferences had been drawn from its decision not to disclose the recordings of interviews completed within the disciplinary investigation. The Court of Appeal disagreed, pointing out that “the evidence was clearly relevant’’ and as a result the Employment Tribunal had a right to draw the inferences it did. The court also noted it was not the role of an appellate court such as the Court of Appeal to look at why these inferences had been drawn, only to ensure that the tribunal had acted within its powers when drawing these inferences.  

Bindu’s claim has been remitted to the Employment Tribunal to consider what damages she will receive following her successful claim for race discrimination against her employer.  

Vindicated: Bindu Parmer wins long-running race discrimination