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Sex Discrimination and Reversing the Burden of Proof

In an embarrassing decision for the Solicitors Regulation Authority (SRA), it has been found guilty of sex discrimination against a female employee whose permission to work part of the week at home in order to look after her children was revoked.

The woman worked as part of a small team within the SRA and, after becoming a mother, had been permitted to spend part of each week working at home. Consent to that arrangement was subsequently withdrawn by her line manager, although a male colleague, whose son had health difficulties, had been allowed to continue with a similar flexible working arrangement.

The manager had put forward various explanations for the difference in treatment, including an assertion that the woman no longer needed to work at home because her children had started school. However, in upholding the woman’s discrimination claim, the Employment Tribunal found those explanations ‘false’ and reversed the burden of proof against the SRA.

Dismissing the SRA’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that, in the light of the manager’s ‘lack of veracity’, it had rightly been required to prove that the woman’s less favourable treatment was in no way influenced by her sex.

The EAT acknowledged that evidence of unreasonable and less favourable treatment alone would not have justified the stern measure of requiring the SRA to prove a negative. However, the manager’s false explanation had amounted to ‘something more’ than that and had justified the reversal of the burden of proof.

The SRA had also argued that no fair comparison could be drawn between the woman’s position and that of her male colleague. However, in rejecting that argument, the EAT noted that a comparator in a discrimination case ‘does not have to be a clone’ of the complainant.