The Checklist Gap: Clifton Diocese v Parker and the Burden of Proof in Belief Discrimination

In 2009 Atul Gawande, a surgeon at Brigham and Women's Hospital and professor at Harvard Medical School, published research showing that a simple nineteen-item checklist reduced surgical deaths by forty-seven per cent across eight hospitals worldwide. The failure it was designed to address was not ignorance — the participating surgeons knew every step. It was the well-documented tendency to skip sequential steps under pressure, to let expertise substitute for procedural discipline, and to assume that a competent professional naturally does things in the right order. The insight was uncomfortable: checklists are not for people who don't know what to do. They are for people who do.

Employment tribunals know the law on the burden of proof in discrimination cases. They quote Igen v Wong in their self-directions as a matter of course. The two-stage analysis under section 136 of the Equality Act 2010 is not obscure. And yet remittals for misapplying it are a recurring feature of the EAT's work — not because tribunals are ignorant of the framework, but because, under the pressure of complex cases with many actors and many acts, the sequential discipline breaks down in identifiable ways. Clifton Diocese v Parker [2026] EAT 68, handed down by HHJ Tayler on 12 May 2026, is the latest example. At paragraph 96, the judge provides five sense-check questions: a checklist, in effect, designed to prevent the same errors from recurring. Prof Gawande would likely approve.

The Facts in Brief

Janet Parker — Cambridge graduate, Fellow of the ICAEW, appointed Head of Finance at a Catholic diocese in 2016 — was dismissed for gross misconduct in October 2021 after a disciplinary process the Employment Tribunal described as "derisory, unbalanced and focused on establishing fault." She was not Catholic. The ET found the dismissal unfair and the gross misconduct finding unsupported; those findings were not appealed. The ET also found direct religion or belief discrimination (lack of Catholic belief) in relation to four elements of the process: the addition of disciplinary allegations, the rushed investigation and hearing, the failure to accommodate her mental health needs, and Mrs Lawrence — the external accountant appointed as investigator — mocking her during the disciplinary hearing. The diocese appealed those discrimination findings.

The background facts are extraordinary. The ET found that the disciplinary allegations had been contrived by the Chief Operating Officer, Mrs Murray, and the HR adviser, Mr Cook, in retaliation for the claimant's request to return to work part-time after adoption leave. Mrs Murray withheld notebook entries demonstrating the contrivance, which surfaced only when the Employment Judge pressed in questioning. The ICAEW separately investigated Mrs Lawrence's complaints against the claimant and rejected them entirely; Mrs Lawrence did not pass that outcome to the appeal officer before the appeal was determined. The unfair dismissal and wrongful dismissal findings flowed from this factual landscape. The discrimination analysis had to navigate it differently.

The Three Errors

Error 1 — The blanket approach to inference

The ET identified eight matters from which it said it could draw an inference of discrimination. These were predominantly the conduct of Mrs Murray, Mr Cook and Monsignor Massey. The ET then used this list collectively to shift the burden in respect of all the discrimination allegations — most of which were acts by Mrs Lawrence. HHJ Tayler held this was perverse: the tribunal had not explained why the conduct of Murray, Cook and Massey could lead to an inference that Lawrence, doing different acts, had discriminated.

The principle is at paragraph 96(4) of the judgment: "things said or done by another person or other people, C, are unlikely to assist in analysing whether A did the Act to B because of the relevant protected characteristic." Organisational culture may sometimes bridge the gap — if there is evidence of a pervasive discriminatory environment, one actor's conduct can colour the analysis of another — but that requires express analysis of the specific connection, not a blanket aggregation of criticisable conduct across multiple individuals.

Error 2 — Importing absence of explanation at stage one

The ET noted the respondent "was unable to provide any explanation for the majority" of the eight matters, and treated that as the basis for concluding the burden had shifted. That inverts the statutory scheme. Under section 136(2) EqA, at stage one the tribunal must assume there is no adequate explanation — it makes that assumption in order to ask whether the facts, if unexplained, could support an inference of discrimination. Whether the respondent has in fact provided an explanation, and whether it is adequate, are stage two questions. As Mummery LJ put it in Madarassy v Nomura International plc [2007] ICR 867 at paragraph 77, approved by the Supreme Court in Efobi v Royal Mail Group Ltd [2021] UKSC 37: "the absence of an adequate explanation only becomes relevant to the burden of proof at the second stage."

Error 3 — The non-discriminatory explanation already found

The ET had made a clear positive finding for the unfair dismissal claim: the disciplinary allegations were contrived as a consequence of the conversation of 29 July 2021, when the claimant sought to return to work part-time — a non-discriminatory cause. The ET then failed to engage with it when analysing the discrimination claims. It was an error of law not to consider whether that finding provided a non-discriminatory explanation for the specific acts said to be discriminatory. A secondary error compounded this: stage two asks whether the explanation is non-discriminatory, not whether it is "reasonable or coherent." Reasons can be bad and non-discriminatory simultaneously. Conflating the two standards distorts the analysis.

The Five Sense Checks

At paragraph 96, HHJ Tayler sets out five questions as a sequential framework for applying section 136 EqA:

1. What is the act, or are the acts, of alleged discrimination done to B? (Consider whether multiple acts can properly be analysed together — same discriminator, similar in nature, proximate in time.)
2. Who is the alleged discriminator A?
3. Did A do the Act to B?
4. Are there facts from which the tribunal could decide — assuming at this stage that there is no adequate explanation — that A did the Act to B because of the protected characteristic? Things done by a third party C are generally unhelpful unless an organisational culture or pattern can be specifically connected to A's actions.
5. If (4) is satisfied, the inference must be drawn — unless A shows that the Act was not done because of the protected characteristic.

The value of this list lies not in the sophistication of each question but in the sequential structure. Question 2 forces attribution before inference, preventing the blanket error. Question 4 requires a logically coherent link between the specific facts and the specific alleged discriminator — not a general impression of institutional failure. Question 5 preserves the instruction that once a prima facie case is established, the burden genuinely shifts and cannot simply be displaced by a plausible narrative.

What This Means in Practice

For practitioners advising on a discrimination claim — or defending one — the same questions are the right ones to ask about each alleged act from the outset. Who specifically did what? Is there a reason, rooted in the protected characteristic, why that person might have acted as they did? Or is this a case of institutional dysfunction and unfair treatment to which a protected characteristic has been retrospectively attached?

Discrimination and unfair treatment are frequently conflated in the drafting of claims — by advisers as much as by clients. When a claimant has been treated badly and holds a protected characteristic, the inference of connection is psychologically compelling, and sometimes it is right. But a legally sound claim requires the connection to be demonstrable, act by act, discriminator by discriminator, and the checklist forces that discipline before the claim is particularised.

One further point. The ET in this case made assumptions about the religious views of the Diocese's witnesses without any evidential foundation. HHJ Tayler remitted with the express observation that "the Employment Tribunal should not make assumptions about the religious views of witnesses without a proper evidential basis." In religion and belief cases, an organisation's institutional identity — church, mosque, faith school, charitable foundation — does not determine the motivations of the individuals working within it. Each alleged discriminator's beliefs and responses to the claimant's protected characteristic require evidence.

Table of Authorities

Gawande's checklist did not make surgeons better doctors. It made them less likely to be undone by the gap between knowing what to do and reliably doing it in sequence. The law on the burden of proof in discrimination cases has been settled for two decades. The problem was never the law.