Briefing 717
’Something more’ required: shifting the burden of proof
Solicitors Regulation Authority v Mitchell UKEAT/0497/1 2/MG, February 17, 2014
Introduction
The shifting burden of proof set our in s136 of the
Equality Act 2010 is a familiar concept to discrimination
lawyers: if the claimant shows facts from which the ET
could decide, in the absence of any other explanation,
that the respondent discriminated against him, the ET
must hold that the discrimination occurred unless the
respondent shows that it did not discriminate. The
following case was decided under s63A of the Sex
Discrimination Act 1975 (SDA) which used different
language to express the same concept.
It is well-established that less favourable treatment
combined with a difference in protected characteristic is
not sufficient in itself to shift the burden of proof:
’something more’ is required. In Glasgow City Council
Zafar [1998] ICR 120 (a case predating statutory
provision for a shifting burden of proof) it was held that
unreasonable treatment, coupled with a difference in a
protected characteristic, was insufficient to raise a prima
facie case of discrimination. More recently, in Madarassy
v Nomura Internationalplc [2007] EWCA Civ 33 (a case
to which the shifting burden of proof in s63A SDA
applied) it was held that a claimant had to show more
than a difference in treatment and a difference in sex to
establish a prima facie case of sex discrimination.
In Mitchell the EAT considered, amongst other
things, whether the ET was entitled to find that the
respondent’s explanation for its less favourable treatment
of the claimant constituted ’something more’ for the
purposes of shifting the burden of proof.
Facts
Mrs Mitchell (M) was employed by the Solicitors
Regulation Authority (SRA) as a costs recovery officer.
Following her return to work from maternity leave in
2001, M was allowed to work from home on two days
each week to facilitate childcare. Another member of the
costs recovery team, Mr Singh (5), had a son with health
difficulties and, due to his childcare arrangements and
lengthy commute, the SRA agreed that he could work
flexible hours similar to those worked by M.
In 2011 M’s manager (C) revoked her flexible
working arrangement. In its place M was offered
flexibility in relation to her start and finish times, but
was only permitted to work from home on an ad hoc
basis (and only when agreed in advance).
M raised a grievance which was rejected. She
subsequently brought a sex discrimination claim alleging
that she had been treated less favourably than S.
Employment Tribunal
C gave evidence before the ET as to the reasons for her
decision to revoke M’s flexible working arrangement:
M no longer needed to work from home as her
children had started school;
other members of the team wanted flexible working
arrangements similar to M’s for reasons not connected
with childcare;
’operational reasons’;
she had received confidential comments from other
team members about the work M was doing or her
working arrangements;
she had concerns about M’s pattern of leave during
school holidays; and
she believed that M was not a team player and was
always out to look after herself.
The ET was critical of the evidence given by C,
describing it as ’unsatisfactory’. The ET considered it
particularly significant that the assertion that M was not
a ’team player’ did not appear in C’s witness statement
and was made only in oral evidence. It stated that:
We were not satisfied that [C] gave the [E T] a full and
frank account of the reasons for her action... What [C]
revealed in our view in oral evidence was that there were
other, more personal, and less justifiable motives which
explained why she acted as she did.
The ET held that S was an appropriate comparator
because of his childcare commitments. It noted that the
comparator is required to be ’comparable’ but not
identical to the complainant and S’s relevant
circumstances were not materially different to M’s.
On the central question of the burden of proof, the
ET concluded that M had proved facts from which it
could conclude, in the absence of an adequate
explanation, that the SRA had discriminated against her
in revoking the flexible arrangements. It held that there
was evidence that she had been treated differently and
less favourably than the relevant male comparator, S. The
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the difference in sex between M and S, triggered the
burden of proof to shift and, that being the case, the ET
was bound to conclude that the SRA had discriminated
against M in the absence of any other explanation for
the less favourable treatment.
ET went on to find that, the burden of proof having
shifted, the SRA had failed to discharge it by proving
that its treatment of M was not influenced by reasons of
sex.
Employment Appeal Tribunal
The SRA appealed to the EAT arguing, amongst other
things, that:
1. the ET had erred in determining that S was a proper
comparator because:
a) there was no finding as to the length of his
commute (he had an 80-mile round-trip whereas
M had a round-trip of eight miles),
b) there were no findings as to the severity of S’s
son’s health difficulties,
c) M had a materially different contractual
arrangement from S (who, unlike M, had applied
for his flexible working arrangement under the
SRAs policy),
d) S had three children whereas M had two; and
2. the ET had erred when applying the shifting burden
of proof on the basis that it made no findings as to
what the ’something more’ beyond less favourable
treatment together with a difference in sex was (the
SRA submitted that C’s lack of veracity was not
capable of being ’something more’).
The EAT held that the ET was entitled to find that S
was an appropriate comparator and remarked that
comparator does not have to be a clone of the claimant. ’It
found that, on the material before it, the ET was entitled
to conclude that, although S’s situation was not identical
to that of M, it was not materially different and the
relevant circumstances were the same. The EAT
commented that:
The argument as to whether IS] was a valid
comparator... appears to us to be an attempt to re-argue
the factual merits of the case and does not raise a point
of law.
The EAT went on to conclude that the burden of proof
had shifted to the SRA and that the SRA had failed to
discharge it. Citing the judgments in Anya v University
of Oxford [2001] IRLR 377, Law Society v Bahl [2003]
IRLR 640 and Birmingham City Council v Millwood
[2012] UKEAT 0564, the EAT stated that:
It was not simply a question of the Respondent putting
forward no explanation but having given a false
explanation. That was very clearly capable of being
comething more
In essence, the EAT found that C’s false explanation,
combined with the less favourable treatment of M and
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Implications for practitioners
This is a helpful judgment as it brings together the key
authorities in relation to the shifting burden of proof. It
contains useful guidance, particularly with respect to (i)
the requirement for ’something more’ than just less
favourable treatment combined with a difference in
protected characteristic and (ii) the circumstances in
which the requirement will be satisfied.
This decision is an important reminder to
practitioners that explanations put forward by
respondents for alleged less favourable treatment can
amount to that vital ingredient of ’something more’ for
the purposes of shifting the burden of proof and, as such,
should be scrutinised very carefully.
This case comes at an interesting time given that from
June 30, 2014 the right to request flexible working will
be extended to all employees with at least 26 weeks’
continuous employment (irrespective of any caring
responsibilities). [See Briefing 709 in this edition.] The
implications of this change will depend on the degree to
which more employees take up the opportunity to make
a flexible working request, particularly in view of the fact
that many employers already offer flexible working to all
their employees. However, employers could face a
challenging situation in having to determine multiple
flexible working requests from employees with differing
personal circumstances. This case makes it clear that in
order to protect against possible discrimination claims
employers will need to adopt a logical and consistent
approach to the consideration of flexible working
requests and provide employees with accurate and
legitimate lawful explanations for any refusal.
Peter Nicholson
Solicitor
Stewarts Law LLP
Briefings