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Old Square success in the EAT, establishing guidance on the burden of proof


Deshpal Panesar KC and Serena Crawshay-Williams win in the Employment Appeal Tribunal successfully defending the judgment in Leicester City Council v Mrs B Parmar [2024] EAT 85 with a comprehensive review of the proper approach to the operation of the burden of proof.

The Claimant is a social worker with a 23-year unblemished record prior to the events concerning her claim. In 2021, she was subjected to disciplinary proceedings and transferred from her role. The allegations were vaguely phrased, were not clarified in the disciplinary meetings, and after some time the Council found there was no case to answer against her.

The Claimant brought a claim of direct race discrimination against the Council, arguing she had been subjected to the disciplinary process and consequences of it because of her race as a British national of Indian origin.

The Tribunal upheld the Claimant’s claim. When discussing why it considered the burden of proof had shifted, it found that the only employees disciplined by the Claimant’s manager were of Asian ethnicity. It also found that there were a number of comparable situations involving white staff members, where the Claimant’s manager had not instigated a disciplinary investigation. The Tribunal found the burden had shifted and the Respondent failed to discharge the burden of proof.

The Council appealed making a detailed, granular attack on the minutiae of the ET’s reasoning, and in particular its approach to the burden of the proof, alleging it had failed to address the relevant issues.

In one of his customarily comprehensive reviews of the law under examination, HHJ Tayler dismissed the appeal and gave guidance as to the proper operation of the burden of proof. The Employment Appeal Tribunal stated:

  1. Considering the two stages of the burden of proof together

It will not necessarily be an error of law if the two-stage burden of proof test is not considered separately for each allegation. Whether a blanket approach is permissible will depend on the facts of the case, including the nature and number of allegations, and whether there are a number of alleged perpetrators.

  1. What constitutes a ‘mere difference of treatment’

If there are multiple examples of unfair treatment, it is unlikely to be a case where there is a mere difference of treatment. In this case, a number of employees of a different race to the Claimant had not been subject to disciplinary proceedings in circumstances similar to the Claimant. This was sufficient to establish more than a mere difference of treatment.

  1. Statistical evidence is not always essential

The fact that the Claimant’s manager subjected one or more Asian employees to disciplinary proceedings, and not white employees in similar circumstances, was a relevant factor when considering the two-stage test. The number of employees who have been treated differently does not have to be statistically relevant before they can be taken into account.

  1. Evidential comparators

In many cases, there will be no actual comparator. The purpose of comparators is to be an evidential tool. A Tribunal is permitted to use an evidential comparator to see whether an inference of discrimination is justified. An evidential comparator is one where the circumstances of a proposed comparator are not materially the same as those of the Claimant, but there are relevant similarities between their circumstances.

Deshpal Panesar KC and Serena Crawshay-Williams acted for the Claimant, instructed by Zaf Aktar of Thompsons Solicitors, who brought her case with the support of Unison.

The EAT judgment can be found here.

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