Tribunal erred in applying burden of proof in religion and belief discrimination case

Background

In Clifton Diocese v Parker [2026] EAT 68, the claimant, a non-Catholic, was employed by Clifton Diocese as its Head of Finance. Following adoption leave in 2020, she sought to return to work on a part-time basis, proposing to work three days a week. Her line manager insisted that the role could not be performed part-time and refused to consider alternative arrangements, such as homeworking.

The claimant subsequently submitted a flexible working request. Shortly after her request, her line manager raised performance concerns for the first time, which escalated into misconduct allegations and ultimately her dismissal for gross misconduct.

An employment tribunal found her dismissal both unfair and wrongful, conclusions not challenged on appeal. It also upheld several discrimination claims regarding the investigation and disciplinary process, criticising the Diocese's external investigator for rushing the process, ignoring the claimant's health, and mocking her during the disciplinary hearing, behaviour which was deemed to be harassment.

The EAT's decision

The Employment Appeal Tribunal (EAT) overturned several findings of direct religion or belief discrimination, identifying significant errors in the employment tribunal's approach to the burden of proof under the Equality Act 2010.

The EAT highlighted that the tribunal had adopted a blanket approach to the first stage of the burden of proof analysis. Instead of assessing each allegation of discrimination separately, the tribunal listed various matters said to support an inference of discrimination without linking them to specific allegations. Many of these matters concerned the conduct of the claimant's line manager and other staff members, yet the discrimination findings were directed solely at the external investigator. The tribunal failed to explain how the conduct of other staff supported an inference that the investigator had discriminated against the claimant, nor did it make findings about the investigator's religion, belief, or attitude towards the claimant's non-belief.

The EAT also found that the tribunal wrongly relied on the Diocese's inability to explain the criticised conduct as grounds for shifting the burden of proof. Under the Equality Act 2010, a lack of explanation alone does not justify shifting the burden. At the first stage, the tribunal must assume no alternative explanation for the alleged discriminatory acts.

Inconsistencies in the tribunal's reasoning were also identified. The tribunal found that the discriminatory conduct was related to religion but simultaneously concluded that the investigator had rushed the disciplinary process due to the line manager's antagonism following the claimant's flexible working request. This contradiction undermined the tribunal's findings.

Additionally, the EAT overturned the harassment finding, explaining that the same act could not simultaneously constitute both direct discrimination and harassment. 

Learning points for employers

Employers should ensure that disciplinary and investigation processes are carefully documented, particularly where there are existing workplace tensions or recent flexible working requests. This case also highlights the importance of separating concerns about procedural fairness from allegations of discriminatory motivation.

The decision is a reminder that the burden of proof test in discrimination claims requires a structured and allegation-specific analysis. Poor treatment or flawed processes will not automatically establish discrimination without evidence linking the conduct to the protected characteristic in question.

For more information, please contact Sofia Efstathiou in our Employment Team.