Tribunals have to identify “something more” than evidence of unreasonable and less favourable treatment on the ground of a protected characteristic in discrimination claims to find a discriminatory reason for the less favourable treatment and thus reverse the burden of proof. In The Solicitors Regulation Authority v Mitchell, the Employment Appeal Tribunal (EAT) held that the tribunal was entitled to find that false evidence on the part of the employer could constitute “something more”.

Unite the union instructed Thompsons to act on its member’s behalf.

Basic facts

After returning from maternity leave in April 2001, Ms Mitchell asked to work from home for two days a week to facilitate her childcare arrangements. She went on a second period of maternity leave in August 2003, returning to work in June 2004. In May 2007 it was agreed that the days she spent working at home should be changed. Another employee, Mr Singh, had a similar arrangement to care for a son with health difficulties.

In September 2008, Ms Mitchell asked her manager, Ms Chambis, if she could change her hours in order to fit in with the school run. Ms Chambis said she could have flexible starting and finishing hours but that she could now only work from home on an ad hoc basis once a week, to be agreed in advance. Ms Mitchell took out a grievance which was unsuccessful, as was her appeal.

She brought a claim of sex discrimination on the basis that she had been treated less favourably than Mr Singh.

Tribunal decision

The tribunal agreed that Mr Singh was an appropriate comparator and that Ms Mitchell had been treated differently and less favourably than him. However, in order to shift the burden of proof onto the employer, the tribunal had to identify “something more” than different treatment on the ground of a protected characteristic (in this case, gender) coupled with less favourable treatment, before it could, in the absence of an adequate explanation by the employer, make a finding of discrimination.

In this case, the tribunal found that the “something more” was the failure by Ms Chambis to give a “full and frank account” of the reasons for her decision to withdraw the arrangement. Although she had argued in her witness statement that the flexible working arrangement was withdrawn for business reasons she revealed in oral evidence that there were other, more personal, and less justifiable motives which explained why she acted as she did and that the reason for the less favourable treatment was connected to Ms Mitchell’s gender.

The employer appealed on a number of grounds, including that the tribunal had made an error of law in relation to shifting the burden of proof. In particular, that Ms Chambis’ false evidence could not constitute “something more”.

EAT decision

However, the EAT disagreed. It held firstly that comparators do not have to be clones of claimants. In this case, the tribunal was entitled on the evidence before it to conclude that although Mr Singh’s situation was not identical to that of Ms Mitchell, it was not materially different and the relevant circumstances were the same.

It held that the false explanation put forward by Ms Chambis was capable of being “something more”. The tribunal was, therefore, entitled to treat the combination of the less favourable treatment, the difference in gender between Ms Mitchell and Mr Singh, and the false explanation given as being evidence from which it could infer, in the absence of a satisfactory explanation, a discriminatory reason for the less favourable treatment.