In a recent case called Clifton Diocese v Parker, Ms Parker worked as Head of Finance for the Catholic Diocese of Clifton. She was not Catholic (which was a protected lack of religion). Following a difficult return to work from adoption leave and a refused request for flexible working, disciplinary allegations were brought against her and she was dismissed for gross misconduct. The original tribunal found the dismissal unfair and wrongful. Those findings were not challenged.
The original tribunal also found religious discrimination, mainly attributing the discriminatory acts to the investigator, Mrs Lawrence. It reached that finding by first identifying serious failures in the process, almost all of which had been committed by other members of management, not Mrs Lawrence. It treated the absence of any explanation for those failures as a reason to shift the burden of proof, including in relation to Mrs Lawrence’s conduct.
The Employment Appeal Tribunal (EAT) sent the discrimination findings back for reconsideration:
- The original tribunal had failed to analyse whether the burden of proof had shifted in relation to each allegation separately, erroneously taking a blanket approach.
- The original tribunal had used the unexplained misconduct of one group of people to infer that a different person had discriminated.
- The original tribunal had taken a lack of explanation into account at the first stage of the burden of proof analysis, when that stage requires the tribunal to assume there is no adequate explanation and ask only whether the facts could point to discrimination.
The original tribunal was inconsistent in finding that the reason for the alleged discriminatory conduct was related to religion when it itself had found that there was another explanation for the conduct.