Discriminatory investigation

In Parmar v Leicester City Council, the Claimant was temporarily moved from her role. She was also subjected to a disciplinary investigation. The allegations against her were vague. The employer found that there was no case to answer. The Claimant, who was of Indian origin, brought a claim of race discrimination against her employer. She said that conflicts were common where she worked but investigations had only targeted her as an Asian employee.

There is a two-stage process in discrimination claims. 

First, a tribunal must consider if a Claimant raises facts from which discrimination could be inferred. 

Second, if such facts have been raised by a Claimant, the burden shifts to the Respondent to disprove discrimination.

The tribunal found that discrimination was a possible explanation for the facts raised by the Claimant – the burden had shifted. The Respondent had failed to discharge the burden of proof and the Claimant’s claim succeeded.

The Respondent appealed, arguing that the tribunal had been wrong to find that the burden of proof had shifted. It argued that the tribunal should have used the two-stage test for each allegation. It argued that the tribunal should not have taken an overall view. It also contended that the tribunal had erred by finding that the fact of a difference in treatment between the Claimant and others was sufficient to shift the burden of proof.

The Employment Appeal Tribunal disagreed. It found that a blanket approach to the assessment of the shifting of the burden of proof was acceptable in this case. It held that the employment tribunal had correctly found that a difference in treatment of other colleagues in similar circumstances, where those colleagues were of a different race, was evidence that could support a claim of race discrimination. The tribunal had correctly looked at all the evidence.

Thanks to Daniel Barnett