Court of Appeal upholds race discrimination claim against council

Background

Mrs Parmar is a British National and describes herself as of Indian origin. She began employment with Leicestershire County Council in 1989 and subsequently qualified as a social worker. Her employment transferred to Leicester City Council in 1997 where she was appointed as Head of Service for Locality West. She had responsibility for several teams with each team managed by a Team Leader.

Mrs Parmar had over 30 years of experience and had not been subject to any disciplinary or capability proceedings until 2021.

Ms Lake was the Director of Adult Social Care and Safeguarding and she had responsibility for eight Service Areas including Mrs Parmar’s.

There had been strained working relationships between Locality West and the Contact and Response section (C&R) for a while and there was often conflict between team leaders. In November 2018, HM, the Head of Service for C&R (and described as white British) raised concerns by email about staffing issues. She said that her team were unable to cope with their workload and some of the work should be re-directed or transferred to others particularly to Locality West. HM had no power to impose this and the suggestion was not well-received. Mrs Parmar complained to Ms Lake about the unacceptable tone of the email.

A few weeks later, Ms Lake confirmed that the additional work would move to Locality West and she had decided that no action would be taken against HM about how she had first raised her concerns.

Subsequently, Mrs Parmar attended a routine supervision meeting with Ms Lake and said she was concerned about the tone of communications from HM. Mrs Parmar accused Ms Lake of having an unconscious bias against black and ethnic minority Heads of Service.

Working relationships did not improve and some individuals raised a collective grievance against HM. In early January 2021, Ms Lake met a member of the HR department and they agreed that a disciplinary investigation was appropriate against Mrs Parmar. Ms Lake also decided to temporarily transfer Mrs Parmar from her role as Head of Service but no other Head of Service was suspended.

As part of the disciplinary investigation, Ms Lake interviewed nine witnesses. At the first disciplinary investigation meeting with Mrs Parmar (held remotely and recorded) Ms Lake discussed the allegations which included that Mrs Parmar failed to behave in accordance with agreed management/leadership standards, failed to ensure that her team behaved in accordance with agreed standards and that these failures created an environment detrimental to the delivery of core functions. No specific details such as dates, conduct, people or the specific standards breached were provided to Mrs Parmar.

A further meeting was arranged but Mrs Parmar was then off work for around a month due to work-related stress. On her return to work she was invited to the re-convened meeting. By then, one of the Council’s Strategic Directors had decided that Ms Tote, Director of Children Social Care and Community Safety, should take over the investigation. Ms Tote viewed all the recorded interviews with the witnesses but neither the recordings or transcripts were given to Mrs Parmar. On 22 April 2021, Mrs Parmar met with Ms Tote remotely. Mrs Parmar said that she did not understand and had never understood what she had done wrong. There was no substantive reply from Ms Tote.

On 7 May 2021, Mrs Parmar attended another remote meeting with Ms Tote who informed her that there was no case to answer and that the disciplinary process would be ended. Mrs Parmar commenced Employment Tribunal proceedings the same day for direct race discrimination.

Note that Mrs Parmar was dismissed on 26 April 2022 and that separate proceedings have been brought in relation to that dismissal. A hearing is scheduled to take place later this year.

Employment Tribunal

Prior to the hearing, Mrs Parmar had made a subject access request which revealed that the Council did not hold information on the number of white and BAME employees from grade 10 above in Adult Social Care where disciplinary action had commenced before 2017. Two disciplinary actions had commenced since 2017 and both were against BAME employees and there was no record of any white comparable employee having been disciplined.

Evidence was given at the hearing (January 2023) that the only other Head of Service to be subject to a disciplinary investigation was of Asian origin. The only other person of a comparable grade to Mrs Parmar who had been subject to a disciplinary investigation commissioned by Ms Lake was also of Asian origin. Ms Lake had not commissioned any disciplinary investigations against any white employees of a comparable status.

Mrs Parmar needed to prove on the balance of probabilities, facts from which the Employment Tribunal could infer, in the absence of any other explanation, that the difference in treatment was because of her race. If she could establish a prima facie case, then the burden of proof moved to the Council to prove that it did not discriminate. Mrs Parmar relied on a hypothetical comparator.

There was no significant dispute about the material facts.

The Employment Tribunal found that the disciplinary investigation and suspension from the role of Head of Service could potentially amount to less favourable treatment. Having considered the evidence, it was satisfied that Mrs Parmar had established a prima facie case, that is, she had proved facts from which an inference of discrimination might be drawn. Specifically, in a number of comparable cases where a disciplinary investigation might reasonably have been instigated, Ms Lake chose not to do this when it involved employees of a different race to Mrs Parmar. Instead, Ms Lake’s normal approach was to offer mediation or to deal with it informally by discussion. She took “much more drastic action” against Mrs Parmar after she had been accused of unconscious racial bias. In the Employment Tribunal’s view there was nothing of substance to start a disciplinary investigation and nothing to suggest that senior managers such as Ms Lake routinely initiated such investigations. Further, the wording of the allegations did not set out any identifiable acts of misconduct by Mrs Parmar.

The Employment Tribunal concluded that when it came to assessing the merits of behaviour allegations against white employees, Ms Lake did not rush to formal measures. In Mrs Parmar’s case “she moved fairly speedily to investigation and suspension for something which was either at the same or lower level of alleged misconduct”. The Employment Tribunal was satisfied that race played a part in Ms Lake’s decisions. There was “no other credible explanation”.

The only employees that Ms Lake had disciplined were of Asian ethnicity.

The Employment Tribunal also drew adverse inferences from the Council’s (or its legal team’s) decision not to disclose highly relevant evidence. It was on the basis of this evidence that Ms Tote decided that there was no substance in the allegations and ended the investigation. The evidence was not limited to the recordings as Ms Lake had made notes of the witness interviews but these were not disclosed. Moreover, Ms Tote’s notes of the investigation meetings were only kept for six months. As Mrs Parmar had commenced her Employment Tribunal claim the same day as Ms Tote had decided there was no case to answer, her notes clearly should have been preserved.

The burden of proof passed to the Council. What was the Council’s explanation? Could it establish a non-discriminatory reason for Mrs Parmar’s treatment?

It argued that the disciplinary procedure was appropriate to obtain evidence from the witnesses. The Employment Tribunal said that this argument was “without substance” as Ms Lake could have made informal enquiries as she often did. The Council also argued that given the potential misconduct, an investigation was appropriate but the Employment Tribunal found that “there was no potential misconduct in reality. The allegations were never particularised”. Further, the Council argued that Ms Lake had spoken to HR and they agreed the appropriate action to take. The Employment Tribunal said that Ms Lake could not hide behind HR’s actions or advice. It was her managerial decision to instigate a disciplinary investigation and temporary suspension.

The Employment Tribunal was satisfied that, in all of the circumstances, the Council had not established, on a balance of probabilities, a non-discriminatory explanation for Mrs Parmar’s treatment.

It was also satisfied that (in the same or similar circumstances involving a white employee or 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 Employment Tribunal was satisfied that Mrs Parmar had been treated less favourably because of her race.

Court of Appeal

The Council appealed to the Court of Appeal.

The Employment Tribunal had heard the evidence and made extensive findings of fact. The issue at the Court of Appeal was whether the Employment Tribunal had erred in law in reaching the decision that it did.

The Court of Appeal dismissed the appeal (22 July 2025).

The Court of Appeal disagreed with the Council that the Employment Tribunal had taken the wrong approach regarding the comparators. The Employment Tribunal had not erred in law in not itemising all the similarities and differences between the cases of the comparators and Mrs Parmar. It was entitled to decide on its finding of facts that the circumstances of the comparators were sufficiently similar to those of Mrs Parmar to mean that the difference in treatment by the Council supported an inference of discrimination.

The Employment Tribunal was not wrong to draw adverse inferences from the Council’s failures of disclosure. The Employment Tribunal had not treated those failures as “automatically” shifting the burden of proof to the Council. Rather, it took those failures into account to draw adverse inferences from them.

The Employment Tribunal had provided detailed reasons about why it did not accept the Council’s non-discriminatory explanation for its treatment of Mrs Parmar. It did not think that the Council’s explanations were credible and on that basis, the explanations could not displace the inference of discrimination.

Comment

There are several practical points for employers in this decision.

Firstly of course, there needs to be consistent treatment of employees. Also important is the need to provide details of the allegations. There was a particular criticism of the Council that no specific details of the allegations such as dates, conduct, people or the specific standards breached were provided to Mrs Parmar. This was not an unfair dismissal claim but a similar issue arises in that employees need to know the details of the allegations against them so that they have the opportunity to put their case in response. Finally, adverse inferences were drawn from the Council’s failure of disclosure and it is important therefore to retain documents/evidence obtained during disciplinary proceedings.

It is reported that the Council is seeking an independent review of its processes following the Court of Appeal decision but there are no further details.