The Solicitors Regulation Authority v Mitchell

For the reverse burden of proof under section 63A(2) of the Sex Discrimination Act 1975, less favourable treatment and a difference in sex do not alone establish a prima facie case. There must be something more from which discrimination could be inferred.

That additional evidence may consist of an employer's false explanation for the differential treatment. Where the tribunal rejects that explanation and no other non-discriminatory explanation arises on its findings, it may infer discrimination and the employer then bears the burden of proving that sex played no part in the treatment.

The Employment Tribunal at Birmingham upheld the claimant's complaint of direct sex discrimination. Her established arrangement to work from home for part of each week to assist with childcare was revoked. A male colleague with childcare commitments retained a flexible arrangement.

The Tribunal found that the employer's explanation for treating the claimant differently was unsatisfactory and false. It held that the statutory reverse burden of proof applied and that the employer had not proved a non-discriminatory reason. The employer appealed, challenging the construction of the home-working arrangement, the comparator, and the Tribunal's approach to the burden of proof.

1. Appeal dismissed. The Employment Tribunal was entitled to find direct sex discrimination contrary to sections 1(2)(a) and 6(2)(b) of the Sex Discrimination Act 1975.

2. The question was not whether the employer was contractually entitled to revoke the home-working concession, but why it did so. The Tribunal's findings about the arrangement and its meaning were factual findings which disclosed no error of law. The employer's challenge was in substance an impermissible attempt to reargue the facts.

3. The male colleague was a valid actual comparator. A comparator need not be identical to the claimant. It was enough that the relevant circumstances were not materially different, and the Tribunal was entitled to make that finding.

4. Under section 63A(2), differential treatment and a difference in protected characteristic alone do not suffice. However, an explanation advanced by the employer and rejected by the Tribunal as false can provide the necessary something more. The Tribunal had given adequate reasons for disbelieving the manager's account, including the emergence of personal and less justifiable motives.

5. The Tribunal was therefore entitled to infer discrimination from the claimant's less favourable treatment, the difference in sex, and the false explanation. In the absence of another non-discriminatory explanation, the employer had not discharged the reverse burden of proving that sex played no part in the treatment. Its conclusion was consistent with the guidance in [2005] ICR 931, [2007] IRLR 246, and the authorities concerning rejected explanations.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the Birmingham Employment Tribunal's finding of direct sex discrimination.
• Employment Tribunal at Birmingham: judgment sent to the parties on 9 January 2012. It upheld the claimant's direct sex-discrimination complaint and extended time on just and equitable grounds.