The claimant in The Solicitors Regulation Authority v Mitchell had, on her return from maternity leave, agreed with her employers that she could work from home two days each week to facilitate child care arrangements. (This was agreed in 2001, before the statutory right to request flexible working was introduced.) A male colleague in the department, who had a son with health problems, worked similar flexible hours.
Some years later, the claimant asked to change the arrangements to cater for a new school run. At this point the employer withdrew their consent to her working from home, although she was offered the opportunity of more flexible working hours. The working arrangements of the male colleague were not changed. This led to a dispute and eventually a claim of direct sex discrimination, which the Tribunal upheld.
The way discrimination cases in the tribunal work is that the claimant has to show discrimination but, in recognition of the difficulties this poses for individuals, the burden of proof shifts to the employer as soon as the employee can show a "prime facie" case. This does not mean that the employee merely has to show a difference in treatment and of gender; there has to be "something more". Here, the employer's explanation for the claimant’s apparently less favourable treatment (operational reasons amongst other things) was rejected by the Tribunal and the EAT decided that this was in itself the necessary "something more". The burden of proof therefore shifted and because the employers had failed to show a non-discriminatory reason for its treatment, the Tribunal was entitled to conclude that the claimant had suffered discrimination. As this was a direct discrimination claim, there was no opportunity for the employers to attempt to justify it.
There was some dispute as to whether, at the time the flexible working arrangement was agreed, the employers had reserved the right to withdraw it but the EAT's view was that this was irrelevant – the issue was not whether the employers could revoke the concession but why it did so.
The case does flag up the potentially challenging issues for employers faced with multiple flexible working requests from employees with differing personal circumstances; a problem that is likely to be exacerbated by the proposed extension to all employees, later this year, of the right to request flexible working.