The claimant and a male comparator were allowed to work from home on certain days to accommodate childcare needs but the claimant had her right to work withdrawn. She was offered greater flexible hours but this did not satisfy her and she lodged a direct sex discrimination claim.

The tribunal did not accept the employers' reason for the change and found that the burden of proof requirements had reversed and that the employer could not show a non-discriminatory reason for the less favourable treatment. The employer appealed.

The EAT explained that 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].

The EAT went on to find that, "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."

This decision has a useful analysis of previous case law in this area, such as Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337; Madarassy v Nomura [2007] IRLR 246; and Laing v Manchester CC [2006] IRLR 748; decisions the EAT felt "constrained by".

In this case, "[The Tribunal] 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”..."

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