The recent case of Clifton Diocese v Parker [2026] EAT 68 considers the correct approach to the burden of proof in claims of direct religion or belief discrimination and harassment under the Equality Act 2010 (“the EqA”).
Facts
The Claimant (JP) was a qualified and highly experienced accountant employed from 2016 at the Respondent in the role of Diocesan Financial Administrator, and later Head of Finance. JP identified as non-Catholic, and received positive appraisals in relation to her work.
In 2020, JP took adoption leave. On planning her return to work, JP requested flexible / part-time working to support her caring commitments. Following this request, the Respondent raised performance concerns and initiated a disciplinary process, which ultimately led to JP’s dismissal. JP brought a number of claims including for direct religion or belief discrimination, harassment related to religion or belief and unfair dismissal.
At first instance, the employment tribunal upheld JP’s claims including the claims for unfair and wrongful dismissal. Some complaints of direct religion or belief discrimination and a linked harassment complaint were also upheld, mainly attributing the discriminatory acts to an external investigator, Mrs Lawrence. The employment tribunal reached these findings by first identifying serious failures in the process, almost all of which had been committed by other members of management, not Mrs Lawrence. It then 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 Diocese appealed only the findings in respect of the claims for discrimination because of religion or belief and harassment. The point of the appeal was a discrete one relating to the burden of proof in claims brought under the EqA.
Decision
The Employment Appeal Tribunal (EAT) held that the employment tribunal erred in law in its approach to the burden of proof in considering a complaint of religion or belief discrimination and a linked complaint of harassment.
For claims brought under the EqA the burden of proof initially rests on the claimant who must establish facts from which the employment tribunal could conclude, in the absence of an explanation, that discrimination occurred. The claimant is required to establish prima facie facts which support the finding that discrimination occurred. The burden of proof then shifts to the respondent to give a non-discriminatory reason for the treatment complaint about.
The EAT found that:
- The employment tribunal has erroneously taken a blanket approach to the burden of proof, instead of asking whether the burden had shifted in respect of each allegation of unlawful discrimination. The consequence was that many of the matters complained about were done by others, not Mrs Lawrence, but the discrimination was attributed to Mrs Lawrence.
- The employment tribunal had wrongly considered the Diocese’s lack of explanation at stage one of its analysis to shift the burden of proof from the claimant. The lack of explanation was irrelevant when considering whether the claimant has successfully shifted the burden because that stage assumes there is no adequate explanation. The matter of the respondent’s explanation (or lack thereof) becomes relevant at stage two, once the burden of proof has successfully shifted to them.
- Some of the findings made by the tribunal were inconsistent to support their conclusion that discrimination and harassment had occurred. The tribunal found that the discriminatory conduct was related to religion but also that JP’s treatment arose primarily because of her line manager’s antagonism against her because she wanted to work flexibly on return from adoption leave. This contradiction served to undermine the tribunal’s findings.
- The EAT overturned the harassment finding because it held that the same allegation could not be both direct discrimination and harassment.
The matter was remitted back to the employment tribunal to redetermine the complaints of direct discrimination because of religion or belief and, if appropriate the complaint of harassment.
- The EAT provided some guidance to future tribunals to act as “sense checks” when deciding discrimination claims as follows: What is the act, or are the acts, of alleged discrimination done to the claimant (B). Sometimes it may be possible to analyse more than one act together. Whether it is appropriate to do so will depend on matters such as whether the acts were allegedly committed by the same person, are similar in nature and their timing.
- In respect of the act or acts, who is the alleged discriminator, or discriminators (A).
- Did A do that act or acts to B.
- Are there facts from which the employment tribunal could decide, in the absence of any other explanation, that A did the act or acts to B because of the relevant protected characteristic. Generally, things said or done by another person or other people (C) are unlikely to assist in analysing whether A did the act or acts to B because of the relevant protected characteristic. There may be cases where a lack of proper equal opportunities policies, poor compliance with relevant policies or the EHRC Code of Practice and/or a culture in which discriminatory language or practices are allowed to develop, may make it more likely that A discriminated against B, but that will generally require some analysis.
- If, on a logical analysis, there are facts from which the employment tribunal could decide, in the absence of any other explanation, that A did the act or acts to B because of the relevant protected characteristic, then the inference of discrimination must be drawn unless A proves that the act or acts was/were not done to B because of the relevant protected characteristic.
Key takeaways
The decision acts as an important reminder of the burden of proof in discrimination claims. The law does not require a claimant to prove discriminatory conduct – rather, the claimant is required to establish facts from which discrimination can be inferred to shift the burden of proof to the employer. It is then for the employer to evidence that the conduct was for a non-discriminatory reason. Similarly, the decision of the EAT is a useful reminder that the context of such complaints matters in determining whether an alternative, non-discriminatory reason is logical in all the circumstances. The EAT was clear that a rigorous analysis of the facts is required before it can be said that unlawful discrimination has occurred, and that even where it can be shown that the actions of A may be grossly unfair that will not necessarily provide any evidence that suggests that the act or acts were done to B because of the protected characteristic.
The EAT’s analysis in Clifton Diocese v Parker underscores that rushed or poorly recorded steps (sudden performance or conduct concerns, incomplete investigations, or HR advice that appears outcome‑driven) can all support an inference of discrimination. For schools and MATs, especially those with a religious character, this means taking the time to follow a transparent, thorough procedure: recording the rationale for decisions, keeping contemporaneous notes, showing how alternatives were considered, and demonstrating that conclusions were reached only after a measured and impartial assessment of all the facts.
It is important to note that in respect of the unfair and wrongful dismissal claims (in which Miss Parker succeeded and were not appealed by the Diocese) the tribunal’s findings depict a disciplinary process that was hurried, pre-determined, poorly reasoned, and procedurally unfair. The abrupt escalation from performance concerns to serious allegations of misconduct was an early indication of unfairness and suggested an attempt to expedite Miss Parker’s dismissal.
There were also significant failures in due process. For instance, the decision-maker took only 30 minutes to reach a conclusion following the disciplinary hearing, despite not having reviewed all the defence materials or investigated the issues raised in Miss Parker’s detailed response. The dismissal letter provided no substantive reasoning, merely repeating the allegations and labelling them as “proven” or “not proven,” without explaining how the Diocese justified summary dismissal for gross misconduct. Finally, the internal appeal was rejected without clarifying which allegations had been upheld or why dismissal remained an appropriate outcome.
The case is therefore a reminder that quick disciplinary decisions and/or short outcome letters will likely not hold up to scrutiny, and neither will rushed processes and inadequate investigations.
This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors.