Welcome to this week’s case of the week! Previously, we looked at a successful pregnancy discrimination claim against a Somerset based cheesemaker in the case of Storm Botha v White Lake Cheeses Ltd. For anyone that missed it, can click here.

This week, we’re examining race discrimination and unconscious bias in the case of Parma v Leicester City Council.

When dealing with unconscious bias I am always drawn to the following riddle:

  

A man and his son are involved in a serious car accident. Due to the severity of their injuries, they are taken to different hospitals. The boy is rushed to the operating theatre and the surgeon walks in. The surgeon then shouts, “I can’t operate, that’s my son!” Who is the surgeon?  

 

If you thought that the surgeon is the boy’s dad, stepdad, second father (in a gay couple), the grandfather or the ghost of the dad then you are wrong. The surgeon is the boy’s mother. However, many of us will subconsciously assume that a surgeon is a male. This is based on many factors including depictions in media. However, this bias will then make it very difficult to see the obvious that a surgeon could also be a mother!

Case Overview

The Claimant worked for the Respondent, Leicestershire City Council, from 1997. The Claimant was of Indian origin and had considerable experience in social work and management. Around 2005, the Claimant was promoted to Head of Service for Locality West.

The Tribunal was made aware of the numerous occasions of conflict throughout the workplace, between different departments.  The Director of Adult Social Care and Safeguarding, Ruth Lake, oversaw these conflicts.

The Claimant came to Ms Lake regarding a conflict at work.  Oddly as a result, the Claimant herself faced disciplinary proceedings which resulted in her being temporarily dismissed. Consequentially, the Claimant presented a race discrimination claim.

Tribunal Findings

 

To determine whether the dismissal was discriminatory the Tribunal applied the following test as per Section 136 Equality Act 2010:

 

1.    Had the Claimant presented any evidence of discrimination?

 

2.    Is the Respondent able to rebut the evidence of discrimination?

 

The Claimant was successful in shifting the burden of proof onto the Respondent and the Respondent could not rebut it. The Claimant presented evidence that suggested as a manager of Indian origin she was treated differently than other managers which resulted in her dismissal. Historically managers of Indian heritage were often subjected to formal disciplinary action when other managers were not.

 

The Respondent tried to present evidence to show objective justification for why other managers were treated differently but Ms Lake was found to be subconsciously bias towards management staff of Indian origin.   The Tribunal upheld the discrimination claim.

Appeal Details

The Respondent appealed the ET’s decision, arguing two points:

 

1.    Firstly, the Tribunal erred in not finding that the burden of proof had been discharged.  The Respondent argued that the Tribunal should not have taken a blanket approach and instead should have applied the two-step test for each allegation bought by the Claimant.

2.    Secondly, the difference in treatment between the Claimant and other staff members were sufficient as comparators to have shifted the burden of proof.

The Employment Appeal Tribunal (EAT) found that the ET did not err in their decision.  The EAT found that the evidence assessed by the ET was sufficient and correct when making their decision.  The difference of colleagues was taken into consideration but what became apparent was that colleagues of other races had not been subject to formal investigations. Whereas colleagues of Indian origin have always been subject to formal disciplinary procedures, including  circumstances where the procedure was not necessary. The EAT dismissed the appeal.

Takeaway Point

Firstly, the Tribunal erred in not finding that the burden of proof had been discharged.  The Respondent argued that the Tribunal should not have taken a blanket approach and instead should have applied the two-step test for each allegation bought by the Claimant.