UK: Race Discrimination: Disciplinary Action
Authors: Charles Urquhart, Corinna Harris, and Charlotte Stern
A recent Court of Appeal case highlights how unfairly disciplining an employee could be discriminatory.
Ms Parmar is a British national of Indian origin who was employed as head of service by Leicester City Council. Relations between Ms Parmar and the other heads of service had become strained and she raised concerns. Rather than investigating her concerns, Ms Parmar was told she would face a disciplinary investigation based on vague allegations and she was removed from her role. Following an investigation, the Council finally decided it did not have sufficient material to pursue disciplinary action, prompting Ms Parmar to raise a claim for race discrimination.
As in any discrimination case, Ms Parmar was required to show that she had been treated less favourably than others were or would have been treated because of her race. To do this, she also had to show that there were facts from which a Tribunal could conclude (in the absence of any other explanation) that there had been a difference in treatment between the employee and her white colleagues (or a theoretical comparator) and that this difference was attributable to her race.
The Tribunal was not persuaded that the Council’s evidence explained its actions or that the explanations were credible. The fact that the Council lacked a credible explanation meant they could not show that there was a non-discriminatory reason for Ms Parmar’s treatment.
In fact, the Tribunal found that the Council had failed to take any action against Ms Parmar’s colleagues in circumstances where they could reasonably have been expected to. Particularly compelling was the fact that her white line manager had only ever disciplined employees ‘of Asian ethnicity’. Further, the Tribunal was particularly unimpressed by the Council’s failure to share investigation notes with Ms Parmar or to disclose relevant evidence.
Ultimately the Tribunal concluded that although the Council had not fabricated the allegations against Ms Parmar, they had treated her less favourably than they would have treated a white employee by transferring her from her role, starting a disciplinary investigation against her and failing to consider more proportionate responses like mediation
The Council appealed against this decision twice and lost twice, with the Court of Appeal agreeing with the Employment Appeal Tribunal that the original Tribunal had not made any legal error.
Key Action Points for Human Resources and In-house Counsel
- Make sure disciplinary action is objectively justified: failing to deal with poor conduct by other managers really undermined the Council’s case.
- Always put key allegations to the employee: the courts were unimpressed by the Council’s failure to explain the disciplinary allegations adequately to Ms Parmar; or share specific details with her.
- Provide employees with relevant information to enable them to answer the allegations being put to them: the Council failed to allow Ms Parmar access to documents and recordings of interviews
- Keep records: this case highlights how important it is to retain documents from internal procedures, otherwise it’s difficult to demonstrate why an employer has taken the steps it has done; and there will be no way to challenge an inference of discrimination.
- Admit a mistake: sometimes it’s better to recognise when you have got things wrong than to pursue expensive litigation. Always take advice first!
