The claimant, a British national of Indian origin, was employed by the council as a head of service within the adult social care and safeguarding division. Following complaints made by other employees regarding the claimant’s behaviour, the director of that division commenced a formal disciplinary investigation against the claimant, but she was ultimately found to have no case to answer. The claimant brought a claim of race discrimination, pursuant to section 13 of the Equality Act 2010. The employment tribunal held that the burden of proof under section 136 of the 2010 Act had shifted to the council to demonstrate a non-discriminatory reason for its treatment of the claimant, on the basis that the claimant had proven facts from which an inference of discrimination under section 13 could be drawn, in particular that there was a disparity in treatment between the claimant, who was the subject of a disciplinary investigation, and other, white employees, who in similar circumstances had been dealt with informally. The tribunal found that the council had not established a non-discriminatory explanation for the treatment on a balance of probabilities and upheld the complaint of race discrimination. The Employment Appeal Tribunal dismissed the council’s appeal.
On the council’s further appeal—
Held, appeal dismissed. (1) The Employment Appeal Tribunal was correct to characterise the employment tribunal’s reliance on comparators as a reliance on evidential rather than statutory comparators. The employment tribunal had made extensive findings of fact and did not err in law in not itemising all the similarities and differences between the cases of the comparators and the claimant. It was entitled to decide, on the basis of its findings of fact, that the circumstances of the evidential comparators were sufficiently similar to those of the claimant to mean that their different treatment by the council supported an inference of discrimination. The making of a comparison was a matter of fact and degree for the employment tribunal which was not required laboriously to itemise the similarities and differences between each case; a factual description of each was sufficient, as the differences and similarities between the cases would be obvious from those descriptions. Nor was the employment tribunal required expressly to intone that the fewer the similarities between the cases, the less cogent a comparison was. That was self-evident. The employment tribunal was therefore not wrong to hold that the burden of proving discrimination shifted from the claimant to the council (paras 3, 87–91, 106, 107).
(2) The employment tribunal did not treat the council’s failures of disclosure as automatically shifting the burden of proof, which would have been an error of law. The evidence was clearly relevant and its approach was to take those failures into account. It did not say that those failures shifted the burden of proof. What it said, instead, was that it drew adverse inferences from those failures. It was entitled to do so, and also to take those inferences into account. The tribunal was alive to the possibility that the failures might have been the responsibility of the council’s legal team. In the present context, the council was one corporate entity. An employment tribunal was entitled to draw an inference from disclosure failures by the council whether or not different individuals were directly or indirectly responsible for it (paras 92–94, 106, 107).
(3) There was no error of law in the employment tribunal’s consideration of the council’s explanations for its conduct. The tribunal did not think that the explanations were credible. If the explanations were not credible, they could not displace an inference of discrimination (paras 95–96, 106, 107).
Andrew Allen KC and Paul Livingston (instructed by Leicester City Council Legal Services, Leicester) for the council.
Deshpal Panesar KC and Serena Crawshay-Williams (instructed by UNISON) for the claimant.