EAT Sex Discrimination : Direct – The Claimant and a male comparator were permitted to work from home on certain days each week to facilitate child care arrangements. The Claimant’s right to do so was revoked, although she was offered the facility of more flexible working hours. The explanation for the Claimant’s apparently less favourable treatment was rejected by the Employment Tribunal which went on to find that the reverse burden of proof in Section 63A of the Sex Discrimination Act 1975 had come into play and that the Respondent had failed so show a non-discriminatory reason for its treatment of the Claimant.
Evidence of unreasonable and less favourable treatment coupled with a difference in protected characteristic is not sufficient evidence in itself without ‘something more’ to reverse the burden of proof; [the Zafar trap]. Something more’ is required to entitle the Employment Tribunal to infer, in the absence of a satisfactory explanation, a discriminatory reason for the less favourable treatment and thus reverse the burden of proof.
In appropriate circumstances the ‘something more’ can be an explanation proffered by the Respondent for the less favourable treatment that is rejected by the Employment Tribunal.
The finding that the Respondent had given a false explanation for the less favourable treatment did therefore constitute ‘something more’ and the Employment Tribunal was accordingly entitled, if not bound, to conclude that the Claimant had suffered discrimination.
Dicta of Sedley LJ in Anya v University of Oxford [2001] IRLR 377, Elias J in Law Society v Bahl [2003] IRLR 640, and Langstaff J in Birmingham City Council v Millwood [2012] UKEAT 0564 followed.
Serota QC J
[2014] UKEAT 0497 – 12 – 1702
Bailii
Sex Discrimination Act 1975 63A
England and Wales
Employment, Discrimination
Updated: 30 November 2021; Ref: scu.521653
