A key aspect for any allegation of race discrimination is not who the employee is compared with when considering any alleged less favourable treatment. The recent Court of Appeal case of Leicester City Council v Parmar, provides some useful guidance on how to approach these comparators in disciplinary proceedings. Case Facts Mrs Parmar is a British National who describes herself as of Indian origin. She began employment with Leicestershire County Council in 1989 and was subsequently transferred to Leicester City Council in 1997. Mrs Parmar had over 30 years of experience and had not been subject to any disciplinary or capability proceedings until 2021. There was a history of strained working relationships within her employment from around November 2018. In January 2021, Mrs Parmar’s employer undertook a disciplinary investigation against Mrs Parmar, who was temporarily transferred from her role. As part of the disciplinary investigation, Mrs Parmar’s employer interviewed nine witnesses. The witness evidence was recorded but neither the recordings nor transcripts were given to Mrs Parmar for comment. The allegations included that Mrs Parmar failed to behave in accordance with agreed management/leadership standards, failed to ensure that her team behaved in accordance with agreed standards and that these failures created an environment detrimental to the delivery of core functions. However, no details regarding the specific standards breached, the dates of any breach or the conduct concerned were provided to Mrs Parmar. Mrs Parmar said that she did not understand and had never understood what she had done wrong. Her employer decided that there was no case to answer and that the disciplinary process would be ended. Mrs Parmar commenced Employment Tribunal proceedings the same day for direct race discrimination in that she had been treated less favourably than others during the disciplinary process because of the protected characteristic of race At the Employment Tribunal Mrs Parmar argued that more black, Asian and minority ethnic managers were disciplined by her employer than white managers, even when serious concerns had been raised about the conduct of white managers in the department. It was also argued that her employer had 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. Mrs Parmar needed to prove on the balance of probabilities, facts from which the Employment Tribunal could infer that the difference in treatment was because of her race. If she could establish a prima facie case, then the burden of proof moved to the Council to prove that it did not discriminate. Mrs Parmar relied on a hypothetical comparator. Mrs Parmar relied on evidence presented to the hearing that the only other employees of her grade that had been subject to disciplinary action was of Asian origin. These facts shifted the burden to the Council to establish a non-discriminatory explanation, which they failed to do, and the Employment Tribunal ruled in Mrs Parmar’s favour. The Council appealed to the Employment Appeal Tribunal (EAT), but its appeal was dismissed. At the Court of Appeal The Council appealed to the Court of Appeal on the basis that the incorrect comparators had been used by the Employment Tribunal to establish the less favourable behaviour. It was argued that the Tribunal had failed to properly consider the extent to which their circumstances differed from those of Mrs Parmar. The Court of Appeal disagreed. The Court concluded that Mrs Parmar’s comparators were two white heads of service who, despite being implicated in safeguarding failures, were treated more leniently than her. 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 such 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 appeal was dismissed. Practical Implications for Employers This case highlights the need to ensure a consistent approach when dealing with employees, particularly when deciding what disciplinary steps, if any, to take. Any time a different approach is taken to similar allegations it is important that a clear factual distinction can be established, as if it cannot the risk of discriminatory inferences increase. It was of note that no specific details of the allegations such as dates, conduct, people or the specific standards breached were provided to Mrs Parmar. Employees are entitled to sufficient details of the allegations against them so that they can put their case in response. Whilst details can be withheld from employees where this can be justified, this does increase the risk of adverse inferences. Significant caution should be exercised when withholding any information. It is important that any decision to do so is documented and such documentation is retained. As always, this advice is general in nature and will need to be tailored to any one situation. As a MILS member you have access to the MILS Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. Motor Industry Legal Services Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only regulated law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.