Court of Appeal rejects challenge by council to racial discrimination ruling
Leicester City Council has lost a racial discrimination case in the Court of Appeal (Civil Division), having previously failed at both an Employment Tribunal (ET) and the Employment Appeals Tribunal (EAT).
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Social worker Bindu Parmar brought the case against the council, arguing she had been treated less favourably than comparable white colleagues on disciplinary matters. She was dismissed in April 2022.
After the ET found for Ms Parmar, the council went to the EAT on 11 grounds, which HHJ James Tayler dismissed, noting: “’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.”
Leicester argued four grounds before the Court of Appeal.
These were that the 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 Ms Parmar to the council - and that the ET was wrong to draw adverse inferences from the council's failures to disclose relevant documents.
The council’s other two grounds were that the ET's approach to its non-discriminatory explanation for its treatment of Mrs Parmar was wrong as was its approach to the council's inviting Mrs Parmar to disciplinary meetings.
Lady Justice Elisabeth Laing said in the Court of Appeal's judgment that the council’s main complaint was that the ET treated the comparators as actual comparators and did not pay attention to the extent to which their circumstances differed from those of Ms Parmar.
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.
Elisabeth Laing LJ said: “There is no substance in the council's argument that the ET misidentified the comparators. It is another example of a 'pernickety' criticism.”
She found there was no substance in the complaint about the Asian employees who were disciplined as “Mrs Parmar can scarcely be criticised for failing to adduce evidence about cases which were within the knowledge of the council, and not hers.”
Turning to Ground 2 the judge said the council suggested the ET erred by automatically treating a failure to disclose relevant documents as raising a presumption of discrimination.
“The ET did not treat the council's failures of disclosure as 'automatically' shifting the burden of proof, which would have been an error of law,” Elisabeth Laing LJ said.
She said the ET drew adverse inferences from those failures as “it was entitled to do so, and also to take those inferences into account.
“The ET was alive to the possibility that the failures might have been the responsibility of the council's legal team. In this context, the council is one corporate entity. An ET is entitled to draw an inference from disclosure failures by the council whether or not different individuals were directly or indirectly responsible for it.”
Dismissing Ground 3 the judge said there was no error of law in the ET's consideration of the council's explanations for its conduct.
It considered them in detail and “there is little more than a cigarette paper between asking whether the council's reasons 'explained its actions' in the sense of being the council's real reasons for acting as it did, and the question whether or not the ET agreed with those reasons.
“It is clear to me that the ET was not persuaded that the council’s evidence did 'explain' its actions. Moreover, it is also clear that the ET did not think that the explanations were credible. If the explanations were not credible, they could not displace an inference of discrimination.”
Ground 4 concerned the ET not asking whether the decision to ask Ms Parmar to three disciplinary meetings was less favourable treatment because of her race and that the EAT did not properly engage with this ground of appeal.
Elisabeth Laing LJ said: “It is clear from the ET's judgment as a whole that it considered that the decisions to invite Mrs Parmar to the first two of three disciplinary investigation meetings amounted to less favourable treatment and that that treatment was because of her race, because it was all part of a baseless investigation.
“To break down each aspect of her complaint on an appeal on a point of law and then criticise the ET for alleged missteps in relation to each item is another example of a 'pernickety approach’.”
She dismissed Leicester’s case and Lady Justice Whipple and Lord Justice Lewison both agreed.
Mark Smulian
Police Misconduct & Vetting Solicitor
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