Shifting the Burden of Proof: Do employers hold all the cards?

Last month, the Court of Appeal gave judgment in a case – Leicester City Council v Parmar [2025] EWCA Civ 952 – which clarified to what extent employers can be penalised when they fail to adequately explain their actions when accused of discrimination. 

People who have been treated unfairly at work will often have good reason to think that they have been discriminated against – because of protected characteristics like sex, race, or perhaps a disability – but lack direct evidence to show why they have been targeted.

In a way, that’s not surprising: employers are rarely so careless to make records of explicit prejudice and so it can be very hard to prove what someone’s motivations were when they have treated an employee poorly. 

Thankfully, the law recognises the difficulty victims of discrimination can face and includes special arrangements which can instead put the onus on employers to show what happened was in line with the law. 

Burden of Proof

In most forms of legal proceedings, the usual rule is that anyone who is making an allegation has “the burden of proof” – meaning it is their job to convince the court or tribunal that it happened. For employment law cases, this means that a claimant must typically convince a tribunal that their allegations are more likely than not to be true. 

However, the rules for discrimination cases are a little different. Section 136 of the Equality Act 2010, says that “If there are facts from which the court could decide, in the absence of any other explanation, that a person […]  contravened [an equality provision], the court must hold that the contravention occurred.”

In effect this means that if a claimant can demonstrate that they have been poorly treated – and have good reason for their suspicions – then the responsibility shifts to the employer to demonstrate the lawful reason for what happened. 

The Case

Bindu Parmar was a senior social worker in a management position within one of Leicester City Council’s social services team. Mrs Parmar complained that she – and other senior managers from ethnic minority backgrounds – had been taken through disciplinary processes, whereas white staff members in similar circumstances had not. 

That was enough for the Employment Tribunal to decide that the burden of proof should shift to the Council. The Tribunal were unconvinced by their explanations of why Mrs Parmar had been treated as she had, and so made a finding that she had been discriminated against. 

The Council appealed the decision up to the Court of Appeal, bringing four different grounds of appeal which consider issues relating to the shifting of the burden of proof and the criticisms Employment Tribunals can make of employers who fail to properly explain their actions. 

First, the Council argued that an incorrect approach had been taken when comparing Mrs Parmar to other managers and that the Tribunal had not delved into enough detail about the specifics of other disciplinary proceedings. According to the Council, it was therefore wrong to shift the burden of proof to them and require them to prove their reasons for treating Mrs Parmar as they did. 

Second, the Council argued against criticism they had received for failing to disclose some highly relevant evidence: interview notes from disciplinary proceedings which ultimately concluded that there was no substance to allegations made against Mrs Parmar. The Council suggested that the Employment Tribunal failed to properly quantify the negative impact of these disclosure failures and had treated them as automatically shifting the burden of proof. 

Third, the Council argued that the Employment Tribunal had not properly taken into account its evidence about why Mrs Parmar was made subject to disciplinary and had instead asked itself whether it agreed with those reasons.

Fourth, the Council suggested that the Employment Tribunal had not adequately considered whether it was unfavourable to treat their invitation to Mrs Parmar to a disciplinary meeting was less favourable treatment, and whether there were adequate non-discriminatory reasons for doing so.   

What the Court of Appeal said

Each of the Council’s grounds were dismissed.

On the first ground, the Court of Appeal endorsed the Employment Tribunal’s approach to comparators and, in particular, criticised the argument that not enough evidence was considered about other Asian employees who had been disciplined, given it was the Council who held that evidence. 

On the second ground, the Court of Appeal rejected the suggestion that the Employment Tribunal had treated the disclosure failures as automatically shifting the burden was incorrect; in fact, they had just drawn adverse inferences – meaning they held it against the Council – which they were entitled to do. 

On the third ground, the scepticism that the Employment Tribunal showed towards the Council’s reasons for discipling Mrs Parmar was considered acceptable to the Court of Appeal.

Finally, on ground four, the Court of Appeal again found that there was no merit in criticisms of the Tribunal’s approach to the disciplinary proceedings, given the context that they were part of a baseless investigation.  

Why this matters

The Court of Appeal decision is confirmation that employers cannot just shrug off well-made accusations of discriminatory treatment without properly explaining their actions. 

This can help readdress the balance of power towards claimants, who can otherwise feel that respondents are the ones holding all the cards. 

How Farore Law can help

At Farore Law, we often work on complex discrimination cases where respondents do whatever they can to shut down and stonewall those who have suffered discrimination. 

We are expert in dealing with potentially difficult points of law like section 136 of the Equality Act 2010, so if this is something you think you might need assistance with, please contact us for legal advice.