In this case, the EAT held that an employment tribunal erred in its approach to the burden of proof in a direct discrimination claim by deciding that the burden had shifted to the employer based on the actions of three colleagues who were not themselves alleged to have committed the discriminatory acts.
Background
In direct discrimination claims there is a two stage test for the burden of proof:
- First, the employee must show facts from which the tribunal could decide, in the absence of any other explanation, that there was discrimination.
- If the employee can show possible discrimination then the burden of proof shifts to the employer to prove it did not discriminate.
Facts
Miss Parker, who is not Catholic, was employed as the Head of Finance for Clifton Diocese. Until the events giving rise to her claims, she had consistently been regarded as an excellent employee. She suffered from anxiety and depression, which she managed with medication, and of which Clifton Diocese were aware.
Having taken adoption leave, Miss Parker asked to return to work part-time for childcare reasons. Her line manager, Mrs Murray, refused on the basis that the Head of Finance role could not be done part-time, and she would not consider alternatives such as homeworking. Miss Parker then submitted a flexible working request.
Around this time, Mrs Murray began raising concerns about Miss Parker's performance, suggesting that she had been grossly negligent in her accounting practices. These concerns were soon escalated into a disciplinary process, in which Miss Parker was accused of gross misconduct. The disciplinary investigation and hearing were conducted by Mrs Lawrence, an external investigator appointed by Clifton Diocese. At the disciplinary hearing, Miss Parker provided a detailed written document defending her actions and raised a number of issues for further investigation. However, no further investigation was conducted and Miss Parker was informed shortly after the hearing that she was dismissed for gross misconduct with immediate effect. When she asked for reasons, Miss Parker was sent a copy of the disciplinary allegations with each marked as "proven" or "not proven". Her internal appeal was rejected without identifying which allegations were upheld or why.
An employment tribunal upheld Miss Parker's claims for unfair and wrongful dismissal, finding that her treatment arose primarily because of Mrs Murray's antagonism towards her desire to work flexibly on return from adoption leave, and the performance issues were therefore re-categorised as matters of gross misconduct to procure her dismissal. The tribunal considered that the disciplinary investigation was derisory, unbalanced and focused on establishing fault, and was far outside the range of reasonable responses. It found that the disciplinary hearing was rushed, Miss Parker did not have sufficient time to respond to the allegations, and in any event no reasonable employer could have regarded the allegations as constituting serious negligence amounting to gross misconduct.
The tribunal also upheld Miss Parker's claim of direct religion or belief discrimination, based on her lack of Catholic faith, in relation to four aspects of her treatment during the disciplinary process - namely, adding disciplinary allegations, rushing the investigation and disciplinary process, failing to take her mental ill-health into account, and Mrs Lawrence mocking her mental ill-health during the disciplinary hearing. The last point was also held to amount to harassment.
Clifton Diocese appealed against the tribunal's findings on discrimination and harassment.
EAT decision
The EAT allowed the appeal, holding that the tribunal had erred in its approach to the burden of proof so its findings on direct religion or belief discrimination could not stand.
The tribunal had taken a blanket approach to the allegations of discrimination at the first stage, rather than dealing with each allegation separately. The discriminatory acts were alleged to have been committed by Mrs Lawrence. However, in holding that the burden of proof had shifted, the tribunal relied primarily on other conduct by Mrs Murray and two colleagues. The tribunal had not explained how that conduct could logically support an inference that Mrs Lawrence had discriminated against Miss Parker on the ground of religion or belief. It had also failed to make any findings about Mrs Lawrence's religion or belief, or her attitude towards Miss Parker's non-belief.
In addition, the tribunal had wrongly taken into account the lack of explanation for the allegedly discriminatory acts at the first stage. When applying the first stage of the two-stage burden of proof test, the tribunal must assume that there is no other explanation for the acts asserted to be discriminatory.
Finally, the tribunal had wrongly concluded that there was no other explanation for the allegedly discriminatory acts, when it had found elsewhere in its judgment that there was a non-discriminatory explanation - namely, Mrs Murray's antipathy towards Miss Parker's desire to work part-time.
With regard to the burden of proof test, the EAT set out what it referred to as "common-sense questions that may provide a helpful sense check" for tribunals when considering whether to draw an inference of direct discrimination:
- What is the act of alleged discrimination done to the claimant (B)? If there are multiple acts, whether it is appropriate to analyse them together will depend on whether they were committed by the same person, are similar in nature, and their timing.
- In respect of the act, who is the alleged discriminator (A)?
- Did A do the act to B?
- Are there facts from which the tribunal could decide, absent any other explanation, that A did the act to B because of the relevant protected characteristic? Generally, things done by another person (C), are unlikely to assist in this analysis. There may be cases where a lack of or poor compliance with relevant policies, or a culture that is permissive of discriminatory practices, make it more likely that A discriminated against B, but this will require some analysis.
- If the answer to question 4 is yes, then the inference of discrimination must be drawn unless A proves that the act was not done to B because of the relevant protected characteristic.
The EAT also held that the tribunal's harassment finding could not stand because it was based on the flawed direct discrimination finding.
The discrimination complaints were remitted to the same tribunal for redetermination. On remission, the tribunal will have to determine whether the allegation that Mrs Lawrence had mocked Miss Parker should be analysed as harassment or direct discrimination, because the Equality Act 2010 does not allow it to be both.
What does this mean for employers?
This case is a clear reminder that unfair treatment by an employer will not necessarily amount to discriminatory treatment unless there is evidence linking the alleged discriminatory acts to the relevant protected characteristic.
The employment tribunal's findings on unfair dismissal in this case were damning, and were not appealed. Once the cap on unfair dismissal compensation is removed (from 1 January 2027), employers' potential liability for unfair dismissal will be akin to that in discrimination claims. The case therefore also sounds a note of caution to employers about the importance of ensuring that investigation and disciplinary procedures are conducted fairly and documented properly.
Case: Clifton Diocese v Parker
