Bindu Parmar – success at the Court of Appeal
Bindu Parmar had been employed by Leicester City Council since 1989, initially qualifying as a social worker in 1994 and, following a number of promotions, was appointed as Head of Service for Locality West in 2015.
During her long service, Mrs Parmar had never been subject to disciplinary proceedings nor had any concerns been raised about her performance. However, she found herself subject to disciplinary proceedings for the first time following a disagreement between her team and another team.
On 12 January 2021, Mrs Parmar was told that she was going to be transferred from her role while a disciplinary investigation took place, and an email was sent to all other heads of service to inform them of this. She was then subject to three disciplinary meetings over the course of several months, however the allegations against her were vague and she remained in the dark about what it was alleged she had done wrong.
On 7 May 2021, nearly five months after the disciplinary investigation began, Mrs Parmar was told that there was no case to answer.
Employment Tribunal
The Tribunal upheld Mrs Parmar’s claim of direct race discrimination on the basis that she had been treated less favourably than a hypothetical white comparator when she was subject to a disciplinary investigation, and that the reason for this less favourable treatment was due to her race.
In a claim for direct discrimination, a claimant must rely on a comparator. It is often difficult to identify a real comparator within the workplace who does not have the claimant’s protected characteristic and has been treated more favourably, and therefore it is possible for a claimant to rely on a hypothetical comparator. There must be no material difference between the circumstances of the claimant and their comparator, other than the protected characteristic in question.
Where there are facts from which the Tribunal could infer, in the absence of any other explanation, that the difference in treatment was because of a protected characteristic, here race, the burden of proof shifts to the respondent to show that there was a non-discriminatory reason for the difference in treatment.
The Tribunal also made findings in relation to how the investigation was conducted. Throughout the disciplinary investigation, several of Mrs Parmar’s colleagues had been interviewed, however the council refused to disclose the recordings or transcripts of those interviews. The Employment Tribunal drew an adverse inference, or in other words reached an unfavourable conclusion, in relation to the council’s failure to disclose this information.
Employment Appeal Tribunal
The council appealed to the Employment Appeal Tribunal, relying on 11 grounds including that the Tribunal had incorrectly applied the law in relation to comparators and that it should not have drawn an adverse inference in relation to the failure to disclose documents.
It also argued that the Tribunal had made an error of law by failing to consider whether the burden of proof had shifted to the council in respect of each separate allegation of less favourable treatment.
The Employment Appeal Tribunal dismissed the appeal.
Court of Appeal
The council again appealed and among other grounds, argued it was wrong that an adverse inference had been drawn from its decision not to disclose the recordings or transcripts of interviews which took place during the disciplinary investigation. The Court of Appeal disagreed, stating that the interview evidence was clearly relevant and as a result, the Tribunal was entitled to take the failure to disclose these documents into account when considering whether the burden of proof had shifted.
As set out above, in a claim for direct discrimination the claimant must rely on a comparator to establish less favourable treatment. An evidential comparator can also be relied on by a claimant in support of their claim, even where there are some differences in the circumstances. Here, the Court of Appeal agreed with the approach taken by the Tribunal when it considered examples of how the claimant’s white colleagues had been treated in the past.
It is however important to note that the burden of proof will not shift simply because of a difference in treatment and a difference in protected characteristic; something more is required before a Tribunal can infer that the reason for the difference in treatment is discrimination.
The appeal was dismissed, and Mrs Parmar’s claim will now return to the Tribunal to determine compensation.
NB: The information provided does not constitute legal advice. This article sets out the position as it is understood to be as at 22 September 2025.