Thursday, 20 February 2014

Discrimination: Burden of Proof

Thanks to Jasvir Kaur of Squire Sanders for preparing this case summary
Was a witness's lack of veracity capable of being the 'something more' beyond difference in gender to reverse the burden of proof?

Yes, held the EAT in The Solicitors Regulation Authority v Mitchell.

Mrs Mitchell had her work-from-home arrangements revoked after her children started school. She raised a grievance, which was rejected. Her comparator was Mr Singh; he was employed in the same role, and allowed to work from home to care for his ill son.

The SRA claimed he wasn't a valid comparator as his arrangement was a permanent change to his contract and he had a large commute. Mrs Mitchell didn’t need to work from home and other members of the team wanted to work flexibly.

The tribunal found she had established a prima facie case and accordingly, the burden of proof had shifted. The Tribunal found the explanation for the treatment was inadequate (based on her manager’s oral evidence which lacked credibility) and inferred discrimination.

The SRA appealed on the grounds that evidence of unreasonable treatment coupled with a different protected characteristic was not sufficient without 'something more' to reverse the burden of proof. The EAT found a false explanation by the witness for the treatment can constitute 'something more' and, therefore, the tribunal could infer discrimination.

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