And speaking of things clouding over brings me to the foggy case of Clifton Diocese v Parker 2026, with its ongoing back and forth between ET and EAT over some complex belief discrimination claims.

Miss Parker, a non-Catholic, was employed by Clifton Diocese as its Head of Finance and was regarded as an excellent employee. After informing her line manager, Mrs Murray, that she intended to adopt a child, she said she experienced difficulties discussing the practical arrangements for her adoption leave, which she considered Mrs Murray approached unsympathetically.

Before Miss Parker returned from adoption leave, she requested to work three days a week to accommodate her childcare arrangements. Mrs Murray refused the request, maintaining that the role could not be performed on a part-time basis and would not consider alternatives, including home working. Mrs Murray also told Miss Parker that concerns had arisen about her performance before she went on adoption leave and that changes had been made to the way the Finance Team was managed following concerns about Miss Parker raised during a HR Committee meeting. However, this contrasted with an earlier meeting during which no concerns had been raised about Miss Parker's work.

Miss Parker submitted a formal flexible working request, together with a strongly worded email criticising Mrs Murray's handling of the situation and alleging that she had been ambushed with performance concerns. The flexible working request was refused.

The performance concerns were then escalated into allegations of gross misconduct. Miss Parker was suspended, subjected to a disciplinary process and dismissed. During the process, she submitted a grievance in which she stated that the Diocese's actions were inconsistent with Catholic beliefs and that the Catholic Church "does not have a blemish-free history when it comes to adopted children or children in care".

Miss Parker brought claims in the Employment Tribunal for unfair dismissal, wrongful dismissal, discrimination because of religion or belief, and harassment. It was accepted that her lack of Catholic belief was a protected characteristic under the Equality Act 2010.

The ET found the investigation to be "derisory in its depth, unbalanced, and focused on establishing fault". It concluded that no reasonable employer could have regarded the alleged performance concerns as amounting to gross misconduct and upheld the claims for unfair and wrongful dismissal.

The ET also found that Miss Parker had been directly discriminated against because she was non-Catholic. It held that unnecessary allegations of misconduct had been added, the investigation and disciplinary process had been rushed, insufficient account had been taken of her health, and that Mrs Lawrence, the external investigator, had mocked Miss Parker's mental health during the disciplinary hearing. The ET also found that the mocking amounted to harassment.

The Diocese appealed the findings of discrimination and harassment.

The Employment Appeal Tribunal held that the ET had applied the burden of proof incorrectly when considering the discrimination claims.

It found that the ET had taken a broad approach by relying on a range of matters said to support an inference of discrimination, rather than considering each allegation separately at the first stage of the legal test under section 136 of the Equality Act 2010.

The EAT also found that most of the facts relied upon by the ET concerned Mrs Murray and other members of staff, whereas the successful discrimination findings mainly related to Mrs Lawrence's conduct during the investigation and disciplinary process. The ET had not explained why the actions of Mrs Murray and others supported an inference that Mrs Lawrence had discriminated against Miss Parker because she was non-Catholic.

In addition, the ET had made no findings about Mrs Lawrence's own religion or beliefs, or her attitude towards Miss Parker's lack of religious belief. Nor had it explained why Miss Parker's criticism of the Catholic Church's treatment of vulnerable children should be treated as evidence that she was non-Catholic, particularly as Catholics may also hold those views.

The EAT also held that the ET had been wrong to rely on the Diocese's inability to explain the conduct as a reason for shifting the burden of proof. A failure to provide an explanation is not, by itself, sufficient to shift the burden. At the first stage of the section 136 test, the ET must assume there is no other explanation for the alleged discriminatory acts.

The EAT further found that the ET's reasoning was inconsistent. Although it concluded that the conduct was related to religion, it had also found there was a separate, non-discriminatory reason for escalating the disciplinary process, namely Mrs Murray's antagonism following Miss Parker's flexible working request. The ET had also applied the wrong legal test by considering whether the explanation was "reasonable and coherent", rather than whether it was non-discriminatory.

Finally, the EAT held that the harassment finding could not stand. The ET had treated the mocking incident as harassment because it had already found it amounted to direct discrimination. However, the same conduct could not amount to both direct discrimination and harassment, as section 212(1) of the Equality Act 2010 provides that, for the purposes of direct discrimination, a "detriment" does not generally include conduct that amounts to harassment.

The case was remitted to the same ET for reconsideration.

In conclusion, this case highlights the importance of fair disciplinary and investigation processes, as well as the need for employers to be able to identify clear, non-discriminatory reasons for their decisions. It also serves as a reminder that, while procedural failings may support findings of unfair dismissal, they do not, by themselves, establish unlawful discrimination. ETs must consider whether there are sufficient facts to support an inference that the treatment was because of a protected characteristic before the burden of proof shifts to the employer.