The Solicitors Regulation Authority (SRA) has lost its appeal against an employment tribunal decision that it discriminated against a female employee after revoking her part-time working agreement.
His Honour Judge Serota, sitting in the Employment Appeal Tribunal (EAT) with Baroness Drake of Shene and Mr M Worthington, upheld the ruling that Ms Mitchell, a costs recovery officer at the SRA, was the victim of direct sex discrimination in breach of the Sex Discrimination Act 1975.
In 2000, Ms Mitchell had been given a home-working agreement so she could care for her young children after returning from maternity leave. Meanwhile, Mr Singh, a male colleague in the same team – the ‘male comparator’ – was allowed to work similar flexible hours as those worked by the claimant because he had a son with health difficulties.
But when a new manager took over the team in which Ms Mitchell worked, the manager sought to review her agreement, on advice from the human resources department. Ms Mitchell raised a grievance about her new arrangement, which was rejected, and ultimately she launched a discrimination claim.
The original tribunal held that the reverse burden of proof in section 63A of the 1975 Act had come into play and the authority had failed to show a non-discriminatory reason for its treatment of the claimant.
In Solicitors Regulation Authority v AJ Mitchell UKEAT/0497/12/MC, the SRA challenged the tribunal’s decision that “something more” had taken place to trigger the reverse burden of proof, in addition to evidence of unreasonable and less favourable treatment coupled with a difference in protected characteristic, such as gender. This extra requirement is known as the ‘Zafar trap’ and stems from the House of Lords ruling in Glasgow City Council v Zafar  ICR 120.
The original tribunal found that the “something more” was that the manager had given unsatisfactory evidence, with her oral statement not sitting well with her witness statement or the basis upon which the case had been presented up until that point.
It said: “Up until then the respondent had asserted that the flexible working arrangement was withdrawn for business reasons and because the claimant’s entitlement under the agreement reached in 2000 had expired. What [the manager] revealed in our view in oral evidence was that there were other, more personal, and less justifiable motives which explained why she acted as she did. We considered that we could not place reliance in her assertion that the reason for the treatment was in no sense whatsoever gender.”
The EAT said there was “no error at all on the part of the employment tribunal”. It had “asked the reason why the claimant had been treated as she was. It was not simply a question of the respondent putting forward no explanation but having given a false explanation. That was clearly capable of being ‘something more’.”
It continued: “The employment tribunal was entitled to find that the combination of difference in gender and less favourable treatment than Mr Singh, coupled with the finding that the respondent’s explanation was false, brought into play the reverse burden of proof. In those circumstances, the employment tribunal then, in the absence of any other explanation for the less favourable treatment, was bound to conclude that the respondent had discriminated against the claimant.”
An SRA spokesman said: “We accept the tribunal’s decision. The SRA is committed to being a fair employer which values and supports its workforce. We have no further comment.”