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Employment Appeal Tribunal finds a shift in the burden of proof due to lack of credibility in evidence

26th March, 2014

In the recent case of The Solicitors Regulation Authority v Mitchell UKEAT/0497/12/MC, the Employment Appeal Tribunal found evidence of direct discrimination on the grounds of sex due to a shift in the burden of proof.

Mrs Mitchell (“M”) had been employed by the Solicitors Regulation Authority (“SRA”) for over 10 years as a Costs Recovery Officer. Following her return from maternity leave in 2001, it was agreed that she would work from home two days per week.

By March 2008, the SRA’s costs recovery team had expanded and now included Mr Singh. Mr Singh was afforded flexible working arrangements similar to M but this was mainly because he had a son with health problems and lived a considerable distance from the SRA’s office. Mr Singh’s arrangements were a permanent change to his contract whereas M’s remained subject to review.

After her children started school, M requested a change in her flexible working arrangements to accommodate her new childcare needs. M’s manager questioned why she continued to need to work from home now that her children were in school and revoked her homeworking arrangements. M was told that the SRA would continue to offer her some degree of flexibility but that in an effort to offer the other members of the costs recovery team the same level of flexibility, it needed to revoke her current arrangements.

M was given the option to work from home one day per week on an ad hoc basis but she did not accept the changes and sought legal advice. M’s manager invited her to submit a flexible working request which M declined on the basis that she already had such an arrangement in place. M raised a grievance and cited Mr Singh as her comparator.

The Tribunal rejected the evidence of M’s manager as a sufficient explanation of why M’s homeworking arrangements had been revoked. Further, the Tribunal found that there were inconsistencies between the evidence and witness statement of M’s manager, and that M’s oral evidence lacked credibility inferring discrimination.

On this basis, the Tribunal held that M had established a prima facie case of discrimination and that the burden of proof had therefore shifted to the SRA.

On appeal by the SRA, the Employment Appeal Tribunal found that the Tribunal were correct to make a finding of discrimination. The SRA had asserted that Mr Singh was not a valid comparator as evidence of less favourable treatment when coupled with a difference in protected characteristic requires ‘something more’ to infer discrimination. The Tribunal held that the absence of a satisfactory explanation by M’s manager, had established the ‘something more’ criteria needed for the prima facie case of discrimination and as such the burden of proof did shift to the SRA.

For further information and advice in relation to the burden of proof in discrimination cases, please contact Paul Bennett on 01743 453685 or send an email to [email protected].

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