Guidance on ‘shifting’ the burden of proof in discrimination claims

In the case of Leicester City Council v Parmar [2025] EWCA Civ 952, the Court of Appeal considered when the burden of proof in discrimination claims will ‘shift’ to the Respondent. 

This case summary will be of interest to HR personnel who deal with disciplinary investigations and tribunal litigation, as the decision highlights the risks of failing to apply a consistent approach to disciplinary allegations and retain documents obtained during investigations.

Brief facts

Mrs Parmar, a British national of Indian origin, was employed as a Head of Service (Locality West) of Leicester City Council (‘LCC’).

Following disputes between Locality West and another service area, Mrs Parmar was temporarily transferred from her post and made the subject of a disciplinary investigation. 

Ms Lake took the decision to open the disciplinary investigation. Responsibility for the investigation passed to Ms Tote, who reviewed the interviews undertaken by Ms Lake (which were not shared with Mrs Parmar at any time or disclosed to the Tribunal). Ms Tote determined that there was no disciplinary case for Mrs Parmar to answer. 

Mrs Parmar brought a claim alleging that the decisions to: (i) temporarily transfer her from her post; (ii) open a disciplinary investigation, only to tell her there was no case to answer; and (iii) not consider lesser and more proportionate means of dealing with the allegations made against her (such as mediation), amounted to direct race discrimination.

Mrs Parmar identified specific instances involving white employees where Ms Lake may have reasonably initiated a disciplinary investigation, but chose not to, and instead sought to address matters through informal discussion or mediation. Mrs Parmar also identified that since 2017, two BAME senior managers had been the subject of disciplinary actions, while no white senior managers had been disciplined.

The Employment Tribunal (‘ET’) found in favour of Mrs Parmar. LCC appealed to the Employment Appeal Tribunal (‘EAT’) who upheld the ET’s decision. LCC subsequently appealed to the Court of Appeal. 

Court of Appeal’s decision

 The Court of Appeal upheld the ET’s decision and dismissed the appeal, finding that:

• the ET had made extensive findings of facts on the comparators identified by Mrs Parmar – with these facts meaning that the ET was entitled to: (i) decide that the comparators’ circumstances were sufficiently similar to those of Mrs Parmar; and (ii) properly draw an inference that the reason for the different treatment was discrimination – shifting the burden of proof to LCC to establish a non-discriminatory explanation for Mrs Parmar’s treatment;

• while the ET had drawn adverse inferences from LCC’s failure to disclose relevant documents relating to the disciplinary investigation, it had not made an error of law by treating these failures as ‘automatically’ shifting the burden of proof; and  

• the ET had considered and was entitled to reject LCC’s explanation for Mrs Parmar’s treatment. As the ET found LCC’s explanation not to be credible, LCC had not satisfied the burden of proof. 

What does this mean for employers?

The Court of Appeal affirmed the ET’s decision, which highlighted the following issues that should be considered by employers when investigating allegations of employee misconduct: 

1. Take heed before responding to disciplinary allegations 

Employers should ensure that they analyse the available evidence (and consider whether any further investigation is required) and the specific nature of the alleged misconduct (with reference to any applicable policies), before determining its response to disciplinary allegations.

2. Deal with disciplinary allegations as consistently as possible 

While it is important for employers to consider cases of alleged misconduct on their specific facts, employers should ensure that disciplinary policies provide guidance on appropriate escalation of matters, and that this guidance is applied consistently by HR teams to mitigate the risk of discrimination claims. 

3. Preserve evidence obtained during internal processes

HR teams should ensure that all documents obtained during internal processes are preserved and held in compliance with the organisation’s data protection policy - which should include an appropriate retention period covering the risk of any future disputes or potential claims.