No, states the EAT in Osoba v Hertfordshire Police.
This was an age discrimination claim. Whilst conducting a staff reorganisation, the Respondent's officer created a points-based matrix to determine which employees would be dismissed. The Claimant contended that the officer deliberately manipulated the matrix to ensure that he, by reason of his age, would be dismissed.
The Tribunal found that the Respondent's handling of this matter was "at its best inconsistent, shambolic in places and lacking in competence". However, their officer's actions (although poorly executed) were not discriminatory and the Tribunal accepted her explanations as an honest attempt to be fair.
The Claimant appealed on the basis that the Tribunal had failed to examine what explanations there were for the incompetence of the Respondent's officer, and that as a result the Respondent had failed to discharge the reverse burden of proof.
The appeal failed. The EAT said it would be wrong for a Respondent to have to give a "yet further possible dissembling explanation" in order to meet the case; there simply may be cases where there is nothing more to say other than "I got it wrong and I take responsibility for that".