Race discrimination: who is the correct comparator?
A key component of the direct discrimination test involves assessing whether an employee has been treated less favourably than a comparator. Correctly identifying that comparator is therefore crucial. In Leicester City Council v Parmar, the Court of Appeal had to decide who was the correct comparator in a race discrimination claim.
The law on direct race discrimination
Under section 13 of the Equality Act 2010, an employee is directly discriminated against when they are treated less favourably than others are or would be treated, because of a protected characteristic (in this case race). It therefore involves a comparison between the treatment of the employee and a comparator. There must be no material difference between the circumstances of the comparator and the employee, except for their race.
The comparator may be an actual person or a hypothetical one. These are referred to as 'statutory comparators'.
It is also possible to have an ‘evidential comparator’; an actual person who shares some, but not all, of the employee's characteristics. Their treatment can be used as evidence to help the tribunal conclude how a statutory hypothetical comparator would have been treated.
When bringing a direct discrimination claim, the employee must first demonstrate to the tribunal there is a case of discrimination to answer. If this is established, the burden of proof shifts to the employer to show the treatment was because of something unrelated to the employee's race.
Facts
Mrs Parmar, a British National who describes herself as being of Indian origin, was head of service for ‘locality west’, one of eight service areas run by the local authority. There were various issues and conflict between the service areas, particularly between locality west and contact and response (C&R) with complaints made by various employees from these service areas to the director of adult social care and community safety, Ms Lake).
In one particular incident, the head of C&R sent an email to the team leaders in locality west stating that they would need to take on some of C&R's work, even though she didn't have the authority to make such a decision. This prompted several complaints from staff, including from Mrs Parmar. Nevertheless, Ms Lake decided that the work would be transferred. During a routine supervision meeting, Mrs Parmar expressed concern to Ms Lake about the tone of the emails from the head of C&R, stating that it was not acceptable for a head of service to ‘kick’ the team leaders in locality west. Mrs Parmar then accused Ms Lake of unconscious bias against black and ethnic minority heads of service.
Tensions between the service areas rumbled on for another couple of years. Following a complaint that described the team leaders and heads of service as 'vindictive and unprofessional', specifically naming Mrs Parmar, Ms Lake then told Mrs Parmar that she was being temporarily transferred from her post and invited to a disciplinary investigation meeting because of failures which ‘created an environment that is detrimental to individuals and to the delivery of core functions…’. However, she was not given any further information.
Mrs Parmar was invited to attend a second investigation meeting, but because she was signed off with work-related stress, it was rearranged. It was decided that another director, Ms Tote, should take over the investigation from Ms Lake. At this second investigation meeting, Mrs Parmar said she did not understand, and had never understood, what she had done wrong. She said she had been interviewed for three hours and still did not know what specific provision she was alleged to have breached.
Ms Tote arranged a third meeting where Mrs Parmar was told there was no case to answer and the process was brought to an end.
Employment tribunal
Mrs Parmar brought a claim of direct race discrimination against the council. She argued that more black, Asian and minority ethnic managers in Ms Lake's division were disciplined than white managers, even when serious concerns had been raised about the latter's conduct. She also argued that Ms Lake failed to investigate safeguarding failures by two white heads of service, and they were not, and would not have been, treated in the same way as she was.
The tribunal held that the disciplinary investigation and suspension were potentially acts of less favourable treatment and Mrs Parmar had proven facts from which an inference of discrimination could be drawn, shifting the burden to the council to establish a non-discriminatory explanation. However, it failed to do so.
The tribunal were satisfied that in the same or similar circumstances Ms Lake would not have initiated a disciplinary investigation or suspended a white or non-Asian employee from their role as head of service. It noted there was nothing of substance to justify a disciplinary investigation, nor any suggestion that senior managers routinely started such investigations. Ms Lake must have known this as the allegations lacked any identifiable acts of misconduct. Therefore, the tribunal concluded Mrs Parmar was treated less favourably because of her race and her claim of direct race discrimination was successful.
The council appealed to the Employment Appeal Tribunal (EAT), but its appeal was dismissed.
Court of Appeal
The council appealed again to the Court of Appeal, arguing that the tribunal had treated the comparators as actual comparators and failed to properly consider the extent to which their circumstances differed from those of Mrs Parmar.
The Court of Appeal explained that Mrs Parmar's comparators were two white heads of service who, despite being implicated in safeguarding failures, were treated more leniently than her. She also relied on the difference in treatment of managers in Ms Lake's division.
It held that the tribunal treated the comparators as evidential, rather than statutory comparators and it was entitled to decide that the circumstances were sufficiently similar to those of Mrs Parmar to mean that their different treatment by the council supported an inference of discrimination. It explained that the making of a comparison is a matter of fact and degree for the tribunal who is not required laboriously to itemise the similarities and differences; a factual description of each is sufficient.
The tribunal drew adverse inferences from the fact that the council failed to disclose certain documents such as recordings of the interviews, notes of witness interviews and notes from the investigation meetings. The council challenged this arguing the tribunal ‘automatically’ treated the council's failure as ‘raising a presumption of discrimination’. The Court of Appeal said that had the tribunal done so, it would have been an error in law. However, the tribunal only took the failures into account, which it was entitled to do.
The council also argued that the tribunal wrongly asked itself whether it agreed with the council's reasons for the way it treated Mrs Parmar. However, the Court of Appeal found no error. It was clear the tribunal was not persuaded that the council's evidence explained its actions nor was its explanation credible.
Finally, the council argued that the tribunal did not properly consider if all the investigation meetings amounted to less favourable treatment because of race. The Court of Appeal also dismissed this point. Although Ms Tote replaced Ms Lake, it was still all part of a baseless investigation.
The appeal was therefore dismissed.
Learning points
Before instigating an investigation into alleged misconduct, stop and think whether it is consistent with how you have treated other employees. It's important to ensure you treat all employees fairly and consistently. As this case illustrates, if an employee can demonstrate they were treated less favourably because of a protected characteristic, there is a significant risk of a successful discrimination claim. This can prove costly given compensation for such claims is uncapped and the reputational damage it can cause to the organisation can be substantial.
Be aware of unconscious bias. A manager may unintentionally treat an employee differently because of their personal views that they may not realise are influencing their treatment of staff and the decisions they make. Train managers and decision makers to identify unconscious bias so they understand it and have the necessary tools to ensure it does not cloud their judgment.
From a procedural point of view, when investigating an alleged act of misconduct, you need to provide the employee with sufficient information to understand what it is that they are alleged to have done. If you can't clearly explain the allegation to the employee, how will you justify it to a tribunal?
Ensure you also keep a paper trail. Keep all meeting minutes, notes, and all evidence. If you don't, the tribunal can draw an adverse inference from it as they did in this case.
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